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Full text of "Reports of cases decided in the Court of King's Bench of Upper Canada"

dnrttFll ICam ^rlyool ICibtatg 



Cornell University Library 

KEO 1051823a 
Reports of cases decided in the Court ^^ 




3 1924 016 966 339 




Cornell University 
Library 



The original of tliis book is in 
tine Cornell University Library. 

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the United States on the use of the text. 



http://www.archive.org/details/cu31924016966339 



REPORTS OF CASES 



DECIDED IN THE 



COUKT OF KIN&S BENCH, 



OF 



UPPEE CANADA. 



BY 

THOMAS TAYLOR ESQ., 

OF THE MIDDLE TEMPLE, BAKRISTER AT LAW. 



CONTAINING THE CASES DETERMINED 

FROM TRINITY TERM 4 GEO. IT., TO TRINITY TERM 8 GEO. IV. j 

WITH A TABLE OP THE NAMES OF CASES ARGUED, 

AND DIGEST OF THE PRINCIPAL MATTERS. 



SECOND EDITION. 



TORONTO: 
HENRY ROWSELL. 

1862, 



BOWSELL 4 ELLIS, PRINTEES, BUNG STREET, TORONTO. 



JUDGES 



THE COURT CF KING'S BENCH, 

DUKING THE PEEIOD OF THESE EEFOETS : 

The Honotjeablb Chief Justice Powell. 
Mb. Justice Boulton. 
Mr. Justice Campbell. 



Attorney-Qeneral : 
John Beverley Kobinson, Esq. 

Solicitor- Creneral : 
Henry John Boulton, Esq. 



A 

TABLE 



CASES REPORTED IE THIS YOLUME. 



PASE 

A. 

Allan T. Brown 335 

Andrus V. Page 348 

7. Burwell , 382 

Applegrath v. Bhymal 427 

Armour and Davis v. Jackson 116 

B. 

Bardon T. Cawdell 486 

Bastable and another v. Mowat 492 

Bayard v. Partridge 406 

Bayman t. Struther 39 

Beasley V. Stegman 498 

Bedstead v. Wyllie 60 

Beardsleyv. Clench - 309 

Beebe T. Secord 409 

BidwcUjRexv 487 

V. Stanton 366 

Binkley v. Deejardins 177 

BleekerT. Myers 281 

Blacklock V. McMartin 320 

Boulton r. Kandal 127 

-^ T. 145 

Briggs T. Spilsbury 440 

Brown T. Hudson 272 

-V. 346 

- — — T. 390 

V.Stuart 144 

- ^ V. Smith 187 

"^ — =^ V. Waldron..., 494 

Brookfield v. Sigur 200 

Brock V. McLean 285 



7ASE 

B. 

Brock V. McLean 310 

V. 398 

Brooke v.Aruold. 25 

Burger doe ex dem. v. Roe 269 

Butler V. Dunn 416 

Byard V. Read .., 413 

C. 

Cameron and wife v. McLean 298 

■ V. 381 

Campbell V. Berri, one, &c 381 

Carfrae, In re 472 

Garruthers v. , one, &c 243 

Ghoate V. Stevens 449 

Clarke doe ex dem. v. Roe 247 

Clench v. Hendricks 403 

Cramer v. Nelles 36 

Crawford V. Ritchie 84 

Crooks V. Stockings 409 

Cross and Fisher v. Oronther 186 

Culver V. Moore... '. 451 

Cumming v. Allen < 205 

D. 

Daltonv.Botts 281 

Dascomb V. Heacocks 438 

Davidson doe ex dem. v. Roei 491 

Davy V. Executors of Myers 89 

De Riviere v. Grant..... 473 

Dorman V. Rawson , 263 

V 278 

Dunlap V. MoDougal 464 



1 

VI. 



TABLE OP CASES. 



PAGE 

D. 
Dunlop doe ex dem. t. Roe 350 

E. 

Elrod, Rex v. 120 

Emery V. Miller 336 

Everingham T. Robinett 380 

F. 

Ferguson v. Murphy , 206 

Flint V. Spafford 435 

Fortune T. McCoy 435 

G- 

Gardner V. Burwell 54 

T. 189 

Gavan v. Lyon 434 

V. 452 

Gee V. Atwood 119 

Goodfame doe ex dem, r. Carfrae 211 

Grant et al. T. Fanning 342 

Grey V. Holme 393 

Griffin doe ex dem. t. Roe 203 

V.Lee 235 

H. 

Hagermanv. Smith 123 

Harris, Rex v. 10 

Karen V. Lyon 370 

Hasleton v. Brundige 84 

Hathaway V. Malcolm 182 

Hawley V.Ham 385 

Henderson v. MeCormick 412 

Hinnerley V. Gould 143 

Hogle V. Ham 248 

Hohne v. Allan and Gray 348 

J. 

Johnson V. Smadis 138 

— ^ V. Eastman 243 

Jones V. Seofield 441 

— -■ — V. Steward 453 

— — V. 461 

K. 

Keefer V. Merrill et al 490 

Einnerley V. Gould 143 

King V.Robins 299 

Kirk V. Tannahill , ., 448 

Laing v. Harvey and Powell 414 



PAOB 

L. 

Lang V.Hall 215 

Large v. Perkins 62 

Link V. Ausman 227 

Logan V. Secord 173 

Lossing V. Horned.. 83 

V. 219 

hyous ex parte 171 

M. 

Madillv. Small 186 

Malcolm v. Rapelje 361 

Mattioe V. Farr 218 

Marklaud et al. v. Bartlett 146 

etal. y. Dalton 125 

Mead v. Bacon , 180 

Miklejohn V. Holmes 39 

Mitchell V. Tenbroek, one, &e 126 

Moffatt et al. v. Loucks 305 

doe ex dem. v. Hall 510 

Moore V.Malcolm 273 

Morris v. Randal 299 

Morau V. Maloy 408 

Myers V. Rathburn ; 202 

V. 127 

Mo. 
McBride, Rex. v. the Justices of the 

District of Niagara ,,. 394 

McColium V.Jones 442 

McDonnell, Rex V. ' 299 

MoDougal V. Camp 87 

McGregor V. Scott 56 

McGilveray V. McDonnell 139 

McGuire v. Donaldson 247 

McGill V. McKay 88 

Mcintosh V. White 57 

Mclntyre et al.. Rex v i 22 

V 70 

Molver et al. v. McFarlane 113 

McKenzie et al. Rex v 70 

McKoane V. Fothergill 350 

McLean V. Gumming , 184 

— V. Hall 491 

McLeod V. Bellars , 273 

MoLoughlin v. McDougal 199 

McNally V. Stevens 263 

MoNair v. Sheldon 433 



TABLE OP CASES. 



VIU 



FA(]£ 

Mc. 

McNair v. Sheldon 451 

McPherson v. Sutherland 422 

N. 

Nagler. Kilts 269 

Nash, RexT 197 

Nevils T. Wilcox 265 

Niohall v. Crawford 277 

. T. Cartwright 464 

. et al. V. Williams 21 

0. 

Orser v. Stickler 42 

V. MoMichael et al 356 

P. 

Patersoa v. McKay 43 

Payne v. McLean 325 

Perkins v. Scott 405 

Phelps, Rex V 47 

Priorv. Nelson 176 

Priestman T. McDougal 451 

Purdy V.Ryder 236 

R. 

Eadcliffev. Small 308 

Radenhurst, ex parte 188 

Ransom et al. v. Bonaghue 493 

Read V. Johnson 489 

Richardson V. Northrope 331 

Roberts V. Hasleton 32 

Robertson doe ex dem. v. Metoalf..... 377 

Robinson V. Hall 453 

V. 482 

Roy et al. V. De Lay 9 

Ruggles doe ex dem. v. Carfrae 211 

S. 

Saunders v. Playter 37 

T. 40 

Sewell v. Richmond 423 



PAQS 

S. 

Sawyer T. Manahan 315 

Scott v. Macgregor 88 

Secord V, Horner 215 

Shankland V. Soantlebury 231 

Sheldon doe ex dem. v. Armstrong... 352 

Sherwood v. Johns 232 

Shuter and Wilkins t. Marsh and wife 172 

Shuck V. Cranston 370 

V. 437 

Smith V. Kennett 463 

V. Rolph, one, &c 272 

v. Sullivan 493 

V. Sumner and Nevils 308 

Stansfield doe ex dem. V. Whitney 130 

Stocking V. Crooks 492 

Stewart V. Crawford ... 409 

Stuart doe ex dem. v. Radish 494 

T. 

Taylor V. Rawson 421 

V. 481 

Terry V. Starkweather 57 

Throopv.Colo 214 

Truesdale V. McDonald 121 

Tully V.Graham 41 

W. 

Ward V. Stocking 216 

Walbridge v. Lunt 462 

Welland Canal Company, Rex. v 30O 

Welby V. Beard 304 

Wentworth V. Hughes 178 

Whelan v. Stevens 245 

V. 439 

White V. Hutchinson 305 

Whitehead and Ward, Rex. v 476 

Williams V. Crosby , 10 

V. 18 

Winkworth v. Hughes 278 

Woodv. Leeming 463; 

Wrightv. Landal „,.• 3Q4 



UPPER CANADA REPORTS 
IN THE KING'S BENCH 



CASES DETERMINED IN TRINITY TERM, 
4 GEO. IV. 



Present : 

The Honourable Chief Justice Powell. 
Mb. Justice BouLTOjsr. (a) 



James Eot and Julia Duval v. Joseph Delat. 

Where a rule to shew cause why an attachment should not issue against an 
attorney for non-payment of moneys recovered for his client, had lapsed ; 
the court refused to grant a new rule without a fresh affidavit, stating 
that the money was still unpaid. 

Washburn obtained a rule last term to shew 
cause why an attachment should not issue against 

one, &c., upon an affidavit, stating the receipt, 

non-payment, and refusal to pay, certain moneys 
received by him from the defendant in this action, 
to the use of the plaintiffs ; and now he stated to the 
court, that the former rule had lapsed, and moved 
for another rule, nisi, upon the former affidavit; sed 
per Cur. 

It appears, prima facie, from the rule not having 
been served, that the demand may have been satis- 

(a) MA Justice Campbeil was absent during the whole of this Term, 
from indisposition. 

2 



10 TEINITY TEEM, 4 GEO. IV., 1823. 

fied : a rule to shew cause cannot issue without a 
fresh affidavit, stating that the money sought to be 
recovered is still unpaid. 

Rule granted upon affidavit nwiide. 



Williams v. Crosbt. 

The court will not grant a peremptory rule for the discharge of an Insolvent 
prisoner without an afBdavit that no interrogatories had been filed by the 
plaintiff. 

Macaulay applied for an order to discharge the 
defendant out of custody, upon an affidavit, stating 
that the order of court obtained under the provincial 
statute {a) for payment of five shillings, currency, per 
week, to the defendant, a prisoner in execution, had 
not been complied with, 

BouLTON, J., {absente Powell, C. J.) — ^There 
must be an affidavit that no interrogatories have been 
filed by the plaintiff, or the application must be for a 
rule nisi, (b) 

Rule nisi granted. 



The King v. Harris. 

^aajrc-r-'Whether the court will award a mandamus to the treasurer of a dis- 
trict in this province. 

Ralph obtained a rule last term to shew cause 
why a mandamus should not issue to the treasurer of 
the district of London, directing him to pay several 
sums of money to the gaoler of the district, under the 
orders of the justices in sessions. The affidavit in 

(a) Prov. Stat. 45 Geo. III. (i) Prov. Stat. 2 Geo. IV., c. 8. 



TEINITY TBEM, 4 QEQi IV., 1823. H. 

supportof the application stated the issuing of several 
orders by the justices in sessions to John Harris the 
trea^surer, requiring him to pay several sums: to 
Bteaupre, the gaoler j^ the presenting of those orders 
to Harris, his refusal to pay them, on the ground of 
there not being any money in the treasury, and the: 
payment; of several orders of a data posterior to, and 
which were presented after, those: of Eeaupre. 

Boulton, Solicitor-General, now shewed cause. 
He. cQjitendedi that the only grounds upon which a 
mandamus can issue are, that the. party has no other 
legal o.r appropriate remedy, or that there is: no 
court, except the superior court, competent to correct 
the acts complained of : that in this case, the legal 
and proper remedy was by indictment, or by applir 
(ption to the magistrates in sessions, to whom the 
treasurer was amenable for his conduct, and who had 
ample means of correcting him by removal: his ac- 
counts were audited and allowed by them, and it- 
would be unreasonable that he should be proceeded 
against by mandamus, in a matter respecting thosa 
accounts, by any other court; he is the officer of the 
sessions, having the custody of moneys which are sub- 
ject to their disposal only: that these positions are 
borne out by all the cases, none of which are con- 
trary to, many bearing a strong analogy to, and 
several directly in point with, the present. In Doc- 
tor Walker's case, Lord Hardwicke says, (a) " Can it 
be said that ever a mandamus went to an officer of 
an inferior court to compel him to do his office ? No, 
sure, for if the inferior officer will not do his duty, 
the judge of the inferior court must turn him out." 

(a) Cases temp. Hardwjclce, 218. 



12 TRINITY TERM, 4 (JEO. IV., lS23. 

In the King against Bristow, (a) Lord Kenyan says, 
"This court have no difficulty, upon a' proper case 
laid before them, in granting a mandamus to justices 
to make an order, when they refuse to do their duty; 
but it would be descending too low to grant a man- 
damus to inferior officers to obey that order: we 
might as well issue such a writ to a constable, or 
other ministerial officer, to compel him to execute a 
warrant directed to him, a^ to grant this application 
to the treasurer, to obey the order in question. It 
was once, indeed, made a question, whether the dis- 
obedience of an order of justice was an indictable 
offence; but since the case of the King v. Eobinson, 
that point has not been doubted: the prosecutors 
must pursue the ordinary remedy in this case by 
indictment:" and my Lord Bacon says, " But, though 
these kind of writs are daily awarded to judges of 
courts to give judgment, or to proceed in the execu- 
tion of their authority, yet are they never granted in 
aid of a jurisdiction, but only to enfore the execution 
of it; nor are they ever granted where there is 
another proper remedy; and therefore will not lie to 
an officer of an inferior court, as to a serjeant at 
mace, an apparitor, &c., to compel them to execute 
their duty, for these are servants to the respective 
courts, and punishable by the judges of them; and 
for the superior court to interfere in obliging such in- 
ferior officers, would be to usurp their authority." (&) 

That supposing this treasurer to be an officer to 
whom a mandamus could issue, the affidavit to ground 
the application was defective, inasmuch as it is not 
sworn that the treasurer had money in his hands 

(a) 6 T. R. 168. (6) Bac. Albr. Tit. Maudamus, 310. 



TRINITY TERM, 4 GEb. IV., l823. 13 

when the orders were presented, and that the orders 
themselves should have been annexed, and not a 
schedule ; and the treasurer has sworn that he had 
no money. 

BouLTON, J. — The affidavits are certainly too 
confined; in a similar application to the present, in 
England, I recollect that fact was expressly sworn to. 

The magistrates, if necessary, can coerce this trea- 
surer: no neglect is shewn upon his part. It is 
merely sworn that an order was issued, and that he 
did not pay it. He has produced his accounts, which 
shew he has no money in his hands, and they are 
supported by affidavit. The court will not therefore 
grant a mandamus to compel him to do what is physi- 
cally impossible; nor will they order him to pay de 
bonis propriis. 

Macaulay, contra. — The object of this application 
is not duly considered by the arguments on the other 
side: if the treasurer had no money in his hands, he 
should return that fact, upon which issue might be 
taken, and that issue might be tried by a jury. If 
the treasurer does not make such a return to the 
mandamus as will satisfy the court, he will be at- 
tached, and the object of the attachment will be, not 
to do that which is physically impossible, but to 
punish him for contempt of the process of this court. 
The treasurer is upon a different footing here to that 
which he is upon in England : he is here appointed 
under the sanction of an act of the legislature; his 
duties are chalked out by statute. When orders for 
payment of money are brought to him, it is his 



14 TRINITY TERM, 4 GEO, IV., 1828. 

duty to pay them out of the first moneys which come 
to his hands: he is not to pay subsequent orders be- 
fore prior ones. In the affidavits in support of this 
motion it is distinctly stated, that he has made seve^ 
ral payments upon orders issued after those of the 
gaoler. If the magistrates have neglected to exert 
their authority, in compelling the, treasurer to per- 
form his duty, this court will interfere. The. case of 
the King against Bristow is very distinguishable 
from the present: that was an application from the 
sessions from a mandamus to the treasurer of a divi- 
sion quarter sessions, from parties who had the 
means of enforcing their own orders. It is expressly 
laid down in Kj.dd, that this court will visit all 
officers, and here the court will not hesitate to grant 
a mandamus; issuable facts may be returned upo» it, 
traversed, and tried by a jury. 

Rolph, same side. — The case of the King against 
Dean Ihclosure {a) is in point. That was an applica- 
tion for a mandamus to commissioner of highways 
appointed by statute, and notwithstanding the 
quarter sessions had authority, the Court of King's 
Bench interfered, and it was laid down that an 
indictment against .commissioners of an inclosure 
act, for not obeying an order of sessions, directing 
them to set out a road, as a public road, would not 
be such a remedy to the party as would induce the 
court to refuse an interference by mandamus. In 
the present case, an indictment or removal of the 
treasurer wopld be no remedy to the party; and 
when the law mentions a legal and specific remedy, 

' ' (a) 2 M. & S. 80. 



TRINITY TERM, 4 CfEO. IV., X«26. 1$ 

it must contemplate one which would assist the 
party in the recovery of his rights. 

Bmlton, Sol.-G-en. in reply. — The case in Maule 
and Selwyn is very different to the present ; the 
commissioners there were not inferior officers, but 
superior in their own court ; an appeal lay to the 
quarter sessions, but as the titoe had elapsed for 
that appeal, the Court of King's Bench interfered, 
on the ground that the party would otherwise be 
without remedy. 

There is no reason for considering a treasurer in 
this country as bearing a different character to that 
which he does in England, (o) It is not necessary 
that the niode of his appointment should be the 
same ; he is amenable to his own court here as well 
as there. If the superior court saw it necessary to 
interfere with the treasurer, it would be by attach- 
ment, a process which the quarter sessions are not 
empowered to issue for disobedience to their orders. 
Is there any instance of this writ issuing, to order 
the performance of an impossibility, and of incar- 
cerating a man for not obeying it ? Suppose there 
may have been orders paid subsequent to the pre- 
sentment of the gaoler's, they were not left with the 
treasurer, and he is not bound to keep a tablet in 
his memory of all orders that are issued. The point 
of law appears from all cases to be clear against thus 
issuing a mandamus in this case, and no grounds 
have been shewn why the court should interfere 
contrary to former determinations. 

(ffl) As to the office and duties of a treasurer of a county in England, vide 
i; G. III., c. 20; 12 G. II„ c. 29, & 6, 7, 8, 9, 12, cited in Burns, J. 



16 TEINITY TERM, 4 GEO. IV., 1823. 

Chief Justice.— This is a beneficial writ prayed 
by Beaupre the gaoler, to supply the want of any 
other remedy adequate to his relief; the treasurer 
is a public officer, declared by statute so to be ; he 
is to receive the public money to pay the orders of 
sessions for its disbursement, and to account to the 
sessions: when the gaoler presented his order, he 
was told that there were no means ; other orders 
.have been made upon the treasurer since that of the 
gaoler, which have been paid ; but Beaupre has 
always been told that there was no money in the 
treasury. Upon principle the treasurer is bound to 
charge the orders as they occur ; it would be mon- 
strous that he should be permitted to prefer one 
person to another at his own caprice ; if it is not the 
law at present, I should hope the legislature would 
make a statute for the payment of these orders in 
rotation ; under the circumstances of this case, a 
mandamus appears to me to be the only remedy. 
I cannot consider the treasurer as an inferior officer ; 
though he is appointed by the sessions, his duties 
are set forth by an act of the legislature,: if the 
treasurer had no money upon the presentment of 
Beaupre's order, he should have been paid out of 
the first moneys , which came into the treasury, and 
the affidavits state that the deponents verily believe 
there was money. The true principle of refusing a 
mandamus in the King's Bench, is not merely that 
there may be some other mode of seeking redress, 
but that it should be a means competent to the 
party. It has been contended that this gaoler 
should proceed by indictment, but that would not 
be an adequate remedy to him : the treasurer may 
be removed, and his securities may be resorted to. 



TRINITY TEEM, 4 GEO. IV., 1823. 17 

by the justices, but still this would not relieve the 
applicant ; his demand upon the treasury remains as 
long as there is money in the treasury, or money 
due to the treasury. The affidavit of the treasurer 
passes by any direct assertion, that he had not the 
means of payment at the time of presenting the 
order, or that he has not had the means since ; it 
admits, that subsequent to the presentment of Beau- 
pre's order a more recent order has been presented 
and paid. The opinion which I formed upon the 
former argument of this case is not altered, but 
rather strengthened : an indictment is not an ade- 
quate remedy here, and I think the mandamus 
should issue. 

BouLTON, J. — ^There are two points to be con- 
sidered in this application : first, whether the trea- 
surer of a district is an officer to whom a manda- 
mus may issue : and, secondly, if he is so, whether 
the affidavits in this case are sufficient to warrant the 
extraordinary interference of this court. As to the 
first point, the cases say that a mandamus is always 
refused where there is a specific remedy; this is laid 
down in Douglas as well as the term reports : in the 
cases there reported the subject of the application 
was a treasurer, here it is the same — I can see no 
difference in the law, no difi"erence in the applica- 
tion ; every authority satisfies me that the writ can- 
not issue ; the only pretence for a different decision, 
is the case in Maule and Selwyn, but it does not ap- 
ply; that was respecting an original appointment ; 
the commissioners were not inferior officers. As to 
the second point, it is not sworn in the affidavits in 
support of this application, that the treasurer has 
3 



.18 TRINITY TEBMi 4 GEO. It., 1»23. 

money in his hands. It appears to me that it wobM 
be a hardship upon him to issue this writ, unless it 
was positively sworn that he had funds. In a simi- 
lar application to the present, to the Court of King's 
Bench, in England, where that fact was sworn to, 
the writ was granted without opposition ; that case, 
therefore, furnished but little authority. My first 
impression on this application was, that the writ 
might issue, but upon considering the law, and look- 
ing; into the affidavits, I am satisfied that a mandamus 
should not be awarded. 

The court being divided, Eolph took nothing by 
his motion. 



Williams v. Crosby. 

It is not sufficient that an affidavit to ground the detention of a ptisoner 
who has applied for his discharge for non-payment of his weekly allow- 
ance, states his being possessed Of property, but it must shew that he has 
secreted it, or fraudulently parted with it, and after such allowance has 
been paid, if the plaintiff discontinues it, he must have affidavits to pro- 
duce in court, to justify such discontinuance at the time the defendant 
moves for his discharge. 

Riduiit shewed cause against the rule nisi obtained 
this term, for (he discharge of the defendant, an in- 
solvent debtor, upon affidavit, stating that the de- 
fendant was possessed of land in the township of 
King, which he became entitled to, subsequent to his 
imprisonment at the suit of the plaintiff. This affi- 
davit had been sworn above a year ago and had not 
'hitherto been made use of by the plaintiff, who had 
^aid tlie defendant the weekly allowance ordered by 
ihe court, for about seventy weeks, and then discon- 
tinue it. 

This prisoner cannot be discharged under the 



TRINITY TERM, 4 GEO, lY., 1823. IQ 

statute, (a) until he answers tlie interrogatories to be 
filed by the plaintiff. The words of the statute are, 
" That when and so often as any prisoner or prison- 
ers in custody, and charged in execution, for debt, in 
any civil suit, shall apply to the court whence such 
process or execution issued, either to be discharged 
or allowed a weekly maintenance, by reason of any 
alleged insolvency, it shall and may be lawful for the 
plaintiff or plaintiffs, at whose suit such prisoner is 
detained, his, her, or their attorney, to file such in- 
terrogatories as he, she, or they shall be advised or 
think expedient, touching or concerning, or for the 
purpose of discovering any property or credits which 
the prisoner may be possessed of, or which he or she 
may be suspected of having secreted, or fraudulently 
parted with, which interrogatories the prisoner is 
required to answer upon oath. TLat after such in- 
terrogatories shall have been filed, and a copy 
thereof delivered to said prisoner, his or her attor- 
ney, said prisoner shall not receive any further be- 
nefit from his or her application ; and the orders or 
other proceedings thereon shall be stayed until the 
prisoner shall have fully answered the same." &c. 
It is immaterial, according to the words of this 
statute, at what time he came into the property. 
He is possessed of land, and not being the insolvent 
person whom the statute contemplates, the plaintiff 
is entitled to examine him upon interrogatories, and 
it is contrary to the intention of the statute tb^t he 
should be discharged until he has an opportunity of 
doing so ; the principle of this statute is the same 
with that of the Lord's act. 



(a) FroTincial Statute, 2 Geo. IV., ch. 8. 



20 TRINITY TERM, 4 GEO. IV., 1823. 

MacauJay and Washburn, contra.— It is not suf- 
ficient now that it is sworn that the prisoner has 
property; it must also be sworn that he has secreted 
it, or fraudulently parted with it. Plaintiffs cannot 
be permitted to pocket up affidavits for a length of 
time, and then produce them to prevent the dis- 
charge of a prisoner. 

Chief Justice.— It appears that the weekly 
allowance has been paid for a length of time, and 
is now discontinued. The plaintiff cannot cease this 
payment without shewing that the defendant has, 
subsequent to the order for the allowance, " con- 
cealed, fraudulently parted with, or made away 
with, his property." If this prisoner should be 
released the debt is not discharged : the plaintiff 
may resort to the property. Before he discontinued 
the payment, he should have had his affidavits of 
these facts ready. The affidavits you have may 
shew property to have come to him since his im- 
prisonment, but shews no secretion of it, or that it 
has procured him a loaf of bread. A man is put 
into gaol, who swears he is worth nothing ; after 
laying in gaol for some time, he procures an order 
for five shillings per week, which is paid for more 
than a year, and is then discontinued : he applies 
for his discharge, and then the plaintiff produces 
affidavits to shew that property has come to him. 
The prisoner must be discharged. 

Per Curiam.— BxiXq absolute. 



TRINITY TERM, 4 GEO. IV., 1823. 21 

NiCHALL ET AL., SURVIVING EXECUTORS, V, WlLLIAMS. 

Where one of these executors is deceased, and the survivor? bring an 
action in right of their testator, the declaration must state that payment 
has not been made to the deceased executor. 

The declaration in this case was for goods sold, 
and upon the common money counts; the breach 
stated that the defendant, not regarding his pro- 
mises, &c., but contriving, &c., to defraud the tes- 
tator in his life time, and the said William Wichall 
and Allan McPherson, since his death, in this 
respect, had not paid the several sums of money, 
&c., to testator in his life time, or to said James 
Nichall and Allan McPherson, executors as afore- 
said, or to any of them, (without any averment of 
non-payment to the deceased executor.) To this 
declaration the defendant demurred generally. 

Macaulay, in support of the demurrer. — No 
notice is taken in this declaration of the deceased 
executor ; he is not even named. There should 
have been an averment according to the forms laid 
down, that no payment was made to the deceased 
executor during his life. 

Baldwin and Washburn, contra. — This is not 
like the case of a deceased partner. In law, a 
negation of payment to one executor is a negation 
as to all. 

Chief Justice. — Each of the executors may 
receive money. To shew that the defendant is 
still indebted, you should aver that the third ex- 
ecutor has not been paid. 

Per Curiam. — Leave to amend upon payment of 
costs. 



22 TRINITY TERM, 4 GEO. IV;, 1828. 

TaB, King v. John MoInttbe and Albxandbe 
Mackenzie, Esquires. 

An attachment will issue against commissioners of a court of requests, -who 
try a cause in which they are interested. 

BouUon, Solicitor-General, had obtained a rule 
in Hilary Term last, calling upon Alexander Fraser, 
Alexander McMartin, John Mclntyre, and Alex- 
ander McKenzie, Esquires, Commissioners of His 
Majesty's Court of Requests, held at Williamstown, 
in and for the county of Glengary, to shew cause 
why an attachment should not be issued against 
them for having illegally and corruptly given judg- 
ment in the said court against Alexander "W' ood, at 
the suit of the elders and committee of the church 
of Williamstown, and issuing execution thereon. 
The facts upon which the rule was granted, as 
stated upon affidavit were, that Alexander Wood 
having, with several others, signed a subscription 
paper or agreement for the allowance of six dollars 
each, per annum, for the support of a presbyterian 
minister, who was to have come from Scotland, and 
having refused to pay the same, in consequence of 
no minister having arrived agreeable to the terms, 
as he conqeived, of the agreement ; he, said Wood, 
was proceeded against to judgment and execution, 
before said Commissioners of the Court of Requests, 
for the sum of one pound, and costs amounting to 
seven shillings and six pence: that John Mclntyre 
and Alexander McKenzie, who gave judgment 
against said Wood, were interested in the event of 
the said suit ; the former being one of the elders, to 
whom the promise, if any in the said agreement or 
subscription paper was made, and the latter being 
personally bound to pay the salary of the minister 
then officiating. It was further stated upon affida- 



TBHIITY TEfiM, 4 (PCh ly., 1823. '23 

vit, tbat goods and chattels of "Wpod of thfi value of 
twenty-two pounds were sold to satisfy the amount 
of the execution, being one pound seven shillings 
only. It was also sworn that the church was indif- 
ferently designated Williamstown or Lancaster. 

Macaulay now shewed cause. — An attachment 
cannot issue against magistrates acting judicially, 
unless actual corruption is shewn. In this case., 
the parties are respectable persons, who could have 
no corrupt motive in what they had done. In the 
judgment of the court of requests, the plaintiffs are 
entitled the Committee of the Church of Lancaster ; 
and in the rule nisi granted by this court, they are 
styled the Committee and Elders of the Church of 
Williamstown, a variance which will prevent the 
issuing of the attachment. In a strict legal proceed- 
ing, as the present is, the names of parties must be 
correctly stated, and though it is sworn that the 
elders and committee are indiscriminately desig- 
nated as of Williamstown or Lancaster, that is not 
sufficient to cure the defect ; as to the value of the 
property taken by the constable, to satisfy the exe- 
cution, he has sworn that Wood told him he had 
no property, except a mare and two stacks of oats. 
—[Chief Justice,— That is immaterial, the complaint 
against the justices cannot go further than issuing 
the execution.] — McMartin has sworn that several 
parties were sued upon the same agreement or sub- 
scription paper, and that they had a full opportunity 
of anaking their defence ;. and if Wood did not choose 
to do so, upon a mere surmise that his defence 
would not be attended to, it was his own fault. 
There is no evidence of corruption in this case j 



24 IRINITY TERM, 4 GEO. IV., 1823. 

the parties were mere agents, and not bound for the 
contracts of others. They may have erred, but 
certainly not from corrupt motives. 

Boulton, Solicitor-General, contra.— In the affi- 
davit to ground this application it is positively sworn 
that one of the magistrates (Mclntyre) was one of 
the elders, plaintiff on the action upon which he sat 
and gave judgment; and that another (McKenzie) 
was personally bound to pay the salary to the pre- 
sent officiating minister. Wood was well entitled to 
refuse payment of the subscription, as the terms 
were not complied with, and the refusal of a copy of 
the judgment by the magistrates, upon the first ap- 
plication, was highly improper. They are certainly 
amenable to the common law as for corruption. In 
the case reported in 1st Lord Raymond, an attach- 
ment issued against a magistrate for giving judgment 
in favour of his own lessee. 

Chief Justice. — Wood seems to have had grounds 
for refusing his subscription, as no clergyman came 
from Scotland to officiate under the agreement. 
One of the magistrates who was concerned in this 
matter very properly withdrew from the bench. A 
man must have no conscience at all who could sit in 
a cause in which he was concerned. There may not 
have been actual corruption, but the case comes un- 
der the law which is anxious to prevent it. 

Per Curiam. — An attachment must issue against 
John Mclntyre and Alexander McKenzie, Esqrs. 



TRtNITY T£«M, 4 GEO. IV., 1828. ' 25 

Brooke v. Arnold. 

WJtere itgteJlrtflSjitiff, endorsee of a prolnissoi'y note payable upon demand, 
had iaken it two years after its date, and was cognisant of an agreement 
Watered into -between the holder from whom he took it, and the defendant 
(tbe ^aker) that the same should be, set off agp.iust a bond of whioh the 
defendant was obligee, and the then holder the obligor ; the court Tteld 
that a plea stating these facts was good upon general demurrer. 

The plaintiff declared in assumpsit, as endorsee of 
a promissory note made by the defendant, and upon 
the common money counts, and laid his damages at 

£^ . The defendant pleaded to the first count: 

1st, that John Arnold, in the first count mentioned, 
after ^e making of the note by Thomas, the defend- 
ant, and before the same came to the hands and pos- 
session of the plaintiff, to wit on the 6th day of Sep- 
tember, 1819, endorsed the note in blank, and de- 
livered the same to one Allan Napier McNabb, and 
authorised the said Allan to demand and have of 
and from ihe defendant the said sum of money in the 
said note specified, according, &c.; of which said en- 
dorsement and delivery, the defendant afterwards, 
to wit, on the day and year, &c., had notice : that 
after the making of said note, and before the same 
came to the hands and possession of the said McNabb, 
so endorsed as aforesaid, to wit, on the 4th day of 
aeptember, 1817, said McNabb executed a bond to 
the defendant in the penal sum of £450 conditioned 
for the payment of £265 6s, Od. by three instal- 
ments, &c. That at the time when said note, so en- 
dorsed and delivered to McNabb by John Arnold, 
and became the property of McNabb for the purposes 
aforesaid, to wit, on the 6th day of September, 1819, 
at Ymk, l&c, there was, and still is due and owing 
upon !th:e said writing obligatory by the condition 
thereof for the second instalment in the said condi- 
tion mentioned, the sum Of £100, Which said last men- 
4 



26 TRINITY TERM, 4 GEO. IV., 1828. 

tioned sum of money so due and owing from McNabb 
to the defendant, greatly exceeds the amount of 
principal and interest due on said note, &c. That 
afterwards, and while the said note, so endorsed as 
aforesaid, remained and continued in the hands, and 
was the property of McNabb, to wit, on the day, 
&c., the defendant, at the special instance and re- 
quest of McNabb in that behalf, consented and 
agreed that the sum of money in the said note speci- 
fied (said note so endorsed as aforesaid, being still 
held and owned by McNabb as aforesaid) should be 
set off and allowed to McNabb for and on account of, 
and in satisfaction of, so much money so due and 
owing by McNabb to the defendant upon the said 
writing obligatory, by the condition thereof as afore- 
said, of all which premises the plaintiff afterwards, 
and before the said note so endorsed as aforesaid, 
came to his hands as in the plea thereinafter men- 
tioned, to wit, at York, &c., had notice : that after- 
wards, and before said sum of money so due and 
owing from McNabb to the defendant, upon said 
writing obligatory, by the condition thereof, or any 
part thereof had been in any other way paid, dis- 
charged, or satisfied, and whilst the same remained 
in arrear and wholly due and unsatisfied, and long 
after the said note became due and payable; to wit, 
on the day, &c., McNabb and the plaintiff, well know- 
ing the premises, but wickedly contriving, &c., and 
to force the defendant unjustly again to pay said 
sum of money in said note specified, and to defraud 
him of his right to set off the same against the afore- 
said sum of money so due and owing from McNabb 
to the defendant on the aforesaid writing obligatory 
by the condition thereof, did agree together that 



T)Rij«TY TERM, 4 GEO. IV., 1823. 27 

McNabb should deliver the said note so endorsed in 
blank to the plaintiff, for the purpose of enabling him 
to sue and prosecute the defendant for the said sum 
of money in said note specified, by virtue of said 
endorsement thereon aforesaid, and the plaintiff did 
then and there accept the said note so endorsed from 
McNabb, for the purposes aforesaid, then and there 
well Snowing, &c., by which means, and by no other, 
the plaintiff became and was the holder of the said 
note. Traverses that John Arnold, by the said en- 
dorsement of the said note, ordered and appointed 
the said sum of money in the said note specified, to 
be paid to the plaintiff, or delivered the said note so 
endorsed to the plaintiff. 2ndly. That the promis- 
sory note so endorsed in blank, came to the hands 
and possession of the plaintiff, by the delivery of 
McNabb, after and not before the agreement that the 
same should be set off against the bond of McNabb, 
and out of which said sum of money so due and ow- 
ing from McNabb to the defendant, the defendant is 
ready and willing, and offers to set off and allow to 
the plaintiff the said sum of money so due and owing 
from the defendant in the said promissory note, ac- 
cording, &c. Traversing as in the first plea. And, 
3rdly, general issue as to the second count in the 
declaration. 

To this plea the plaintiff demurred generally. 

Baldwin, in support of the demurrer. — This plea 
is an attempt to set off a bond debt due to the defen- 
dant by a third person, against a note due by the 
defendant to the plaintiff in this action; if this coald 
be done, the plaintiff would be unjustly deprived of 



28 TEINITY TERM, 4 GEO. IV., 1828. 

tafeiag %se exceptions to, this bofld which the qWa- 
gor might take in an action agaiajst him by th^^obh- 
gee ^McNabb should have delivered this note up to 
Thomas Arnold, the defendant, th^ obligee in the 
bond, and have had the amount endorsed, or he^rsigh* 
have brought his action; but this attempt, to Mnd^the 
pla,intiff by an agreement to which he was aot acces- 
sory or privy, cannot be supported. This plea 
charges the plaintiff with an intenitipn; to deprive the 
defendant of a right of set-off, a charge so vague and 
uncertain that the plaintiff cannot be called, upoft to 
answer it. The defendant, by his plea, ackoowledps 
every circumstance necessary for the plaintiiff to sup- 
port his action: the making of the note, by the defeur 
dant, the endorsement in blank by the payee, aad 
the subsequent delivery to the plaintiff; If the coust 
should support this plea they would deprive negotia- 
ble instruments of their credit, if not entirely destroy 
their negotiability, for who would take them if they 
were made subject to agreements entered into pre- 
vious to their transfer; would the bajak here be con- 
cluf^ed by agreements, such as is here attempted to 
be set up, after a note had passed, through: a dozen 
hands ? A note endorsed in blank stands upon the 
same footing as one payable to bearer, is transfera- 
ble by mere delivery, and can be recovered upon, 
though it may have been stolen by a prior holder, as 
laid down in Douglas's Eeports. (a) Supposing even 
that the plaintiff may have come to this note unfairly, 
it might be a consideration for a court of eqnity, but 
a plea in bar must contain, matter of law, as lai^ 
down in Chitty. (6) It would be idle and absurd to 
contend: that the plaintiff's demand in this au^m, 

{a} PeacpokT. Rlioctes, Doug. 611, 68?. (J) CM«y on Pieadtog, c. 7. - 



TEINITT TERM, 4 GEO. lY., 1823. 29 

GimM. Ite destroiyedtby an agreeimeiit for a set-off, of 
wMch he had no knowledge. The. second plea offeFS 
to set off this note agaiast a bond due to the defend- 
ant by a third person, aad it appears to m& can only 
be intended to puzzle with new matter, for it is 
cjearly established and well known, that to: entitlei a 
di^iendant to a set-off, the debts must be mutual, but 
iathis plea he offers in fact to give credit to Mcr 
Nabb, a stranger to. the action. An executor or ad- 
ministrator cannot set off, nor cana trustee.— (Chief 
JpsTi<?E. — A trustee has no property.) — Nor can any 
person set off unless the legal title to that which he 
attempts to set off may be gone into. ; if this plea 
were allowed, the plaintiff would be concluded by 
an instrument to which he, has no access. In the 
case of Wake ag^^inst Tinkler, (a) the defendant 
attempted to set off a bond executed by the plaior 
t;^ to. a third person, and assigned by him to 
defendant; but, notwithstanding the equity of that 
case, the court determined against the plea,; obr 
serving that they had nothing to:do with other than 
lega-l rights, It is impossible to make this plaintiff 
a party to the bond.; It is an attempt to apply to 
the equity of the court; but the plea is bad, inasmuch 
aa no. legal right is shewn. The traverse which cout 
eludes the plea ia also bad, for nothing can be tra^ 
veEsedr which is matter of law, and; the court will not 
allow this to pass without observation; for an en* 
dflSFsement is an order in law by the endorser to pay 
the holdejt'. There is no matter shewn in this plea 
upoja which issue can be taken ; it- offers that as a 
s^off which cannot be- the subject of one. 

(o) 16 E. B. 36: 



30 TRINITY TERM, 4 GEO. IV., 1823 

Boulton, Solicitor-General, contra.— The object 
of this plea is not to set up a cross demand. The 
defence is grounded in fraud, which fraud is clearly 
and obviously set out in the pleadings: the plea 
charges a direct fraud and conspiracy: A. has a de- 
mand against B. for a note payable on demand, 
which is not endorsed until a great length of time 
after its date ; after it has been agreed between them 
that this note should be taken as a set-off to a bond, 
A. agrees with a third person (Brooke) to deliver 
this note to him for the express purpose of defeating 
this agreement; Brooke, by the demurrer, admits 
these circumstances, which amount to a fraud and 
conspiracy — a complete answer to the action, for no 
fraudulent transaction can be a ground of action. The 
defendant does not seek an equitable right, but 
charges a fraud in which the plaintiff is concerned. 
The general issue in this case would have been too 
narrow; it was necessary that the circumstances 
should be pleaded specially: the plea states the 
agreement between the defendant and McNabb, and 
Brooke's knowledge of it, and that he, wickedly con- 
triving to injure and defraud the defendant, and to 
force him unjustly again to pay the sum specified in 
the note, and defraud him of his right to set off the 
same against the money due upon McNabb's bond, 
agreed with McNabb for the delivery of the note to 
him for the purpose of enabling him to sue. If this 
had been an indictment for a conspiracy, and Mc- 
Nabb had been joined, these words would have sup- 
ported a conviction. The distinction between taking 
a note before or after it becomes payable is well 
known. — [Chief Justice. — A person taking such a 
note takes it with all exceptions.] — This note was 



TBINITY TERM, 4 GEO. IV., 1828, 31 

dated in 1817, and not endorsed until two years after- 
wards. McNabb could not have recovered against 
Arnold; the mutual agreement would have rendered 
the note invalid, which was endorsed such a length 
of time after it was payable, even though the endor- 
see had been ignorant of such agreement. — [Chief 
Justice. — This note having been transferred two 
years after it was due, brings the case within the de- 
termination in the 3rd term reports, (o)]-— Here its 
endorsement at so long a period after date, places 
Brooke, the plaintiff, in the situation of McNabb, 
who could not have prevented a set-off. It was the 
plaintiff's bounden duty to have enquired respecting 
this note; he is a particeps criminis upon the record, 
and cannot recover. — [Chief Justice. — It did not 
appear to have been dishonoured at the time of the 
delivery to Brooke.j — In the case of Banks against 
Colwell, which was an action by an endorsee upon a 
note payable upon demand, tried before Mr. Justice 
Buller, the defendant was admitted to give in evidence 
that the note had been endorsed to the plaintiff, a 
year and a half after date, and to impeach the con- 
sideration by shewing that the note had originally 
been given for smuggled goods ; and though no 
privity had been brought home to the plaintiff, the 
learned judge non-suited him. In this case much 
more than a reasonable time had elapsed between 
the date and transfer of the note ; it was high time 
for the plaintiff to look oat, high time that his dis- 
trust should have been excited. As to the objection 
made to the traverse, there can be no doubt but 
that that part of the plea is good, at any rate upon 
special demurrer. 

(a) 3 T. K. 80. 



32 TRINITY TERM, 4 GSO. IV., 1«28. 

■OfiiBF Justice.— This is an action of assumpsit, 
and the plea mmh out of the common eoUrse: it can- 
mot be concealed that McNabb had thcipossession of 
the note upon which the action is brought, and that 
the contents of dt were due to him as assignee of the 
p^yeej that he had former transactions with Arnold, 
the defendant, -with whom he entered into an agree- 
ment that the amount of this note should be setoff 
against the second instalment of a bond, of which 
Arnold, the defendant, was the obligee, and McNjtbb 
the Obligor: that this agreement took place before 
the note was negotiated to Brooke, the plaintiff, arid 
tha.tof this agreement Brooke had notice; the equity, 
or ri^ht of set-off, Which Arnold the defendant had, 
would follow the note in the hands of Brooke; with 
a knowledge of that right he could not claim pay- 
ment: it is admitted by the demurrer that he had 
that knowledge : it is also admitted that the note 
was transferred about two years after it came to the 
hands of McNabb. Under these circumstances I 
consider that the plea is good. 

Per Curiam. — Judgment for the defendant. 



Roberts v. Hasleton. 

Where one of the bail to the sheriff iad in consequence of the defendant 
'MAWng *hB pSfovmoe, and nnder an apprehension that he -would not re- 
turn to'defend *he suit, had given a cognovit in his own name to the 
•^Mntiff; the te'ourt upon an affidavit of merits staye'd the proceedinss 
upon tHecognovit. 

Washburn obtained a rule this term calling upon 
the jplaintiff to shew cause (upon an affidavit swear- 
ing to merits) why the proceedings upon a cognovit 
given by -Brmidige, one of the deferdaTit's bail to 



iBiHir TBiM, 4 @m. vf., im. 33 

tl^ sliewff, sbiould not lua stayed uatil a trial of such 
mm^ «!Qi»l<l be Im^ upoa payment of costs iiicur- 
ned T^jproceedinga against tke sheriff's bail, leawng. 
the; judgment bj coafeasioB, which he gave, as seein- 
EitrjT' to the plaintif , pleading issuably, and goiug to 
tjfial at the next Niagarai assizes ; and now, 

Macaulay shewed cause. — A rule nisi was obtained 
ia this ease ia Michaelmas Term last, which the 
paajty aipplying has suffeied to lapse; after this 
ladies aind indiffeiEeace he should not be permitted 
to apply again : several terms have elapsed since the 
plaintiff and defendant in this motion were parties 
in a suit. The plaintiff held the defendant to bail: 
he- gave bail to the sherif and left the province. 
Qae of the bail, (Brundige,) the person in whose 
behalf iMs application is made, voluntarily gave his 
own. ©jgnovit, uiadertaking to bring no writ of error, 
and some time afterwards, the defendant, who had 
left the province, returned, put in special bail long 
after the time allowed by the rules of the court; 
waits, foj! several days before he gives notice; and, 
after all this irregdarity, an application is pade: to 
sta^- proceedings upon this cognovit, and that the 
defendant majy go to^ trial ; the; motion, affidavits, 
and rate*, are altogether foreign to this judgment. 
The confession was voluntarily given by Brundage. 
He: ofeiiaimed time for the payment of the debt, and 
if the defendaiB* has left him in the Iwch he must 
resort to Mm. The rule, though entitled in the cause 
oi Hasktoni and Roberts, has nothing te doi with it, 
but is in favoar of another person, against whom 
judgment has been entered. The defendant did noi 
enter bail in.; time: he was too. late in perfecting it— 
5 



34 TRINITY TEEM, 4 GEO. IV., 1828. 

too late in his notice of justification, and he is cer- 
tainly now too late in his application to set aside this 
judgment. It is laid down in Willes' Reports, that if 
application is made to stay proceedings upon a bail 
bond, the rule must be entitled in the action upon 
the bail bond: here the motion is made in an action 
altogether foreign to the judgment. The writ was 
returnable in Trinity Term last, the 2nd of July; on 
the 17th of July, after the cognovit was given by 
Brundige, and after the expiration of the time for 
putting in bail, it was put in, and last November we 
were entitled to execution against Brundige upon his 
cognovit. 

, Washburn, contra. — The rule for putting in bail 
within four days after the return of the writ, is in- 
tended of the iirst four sitting days: bail cannot be 
permitted to fix a defendant by signing a cognovit. 
The defendant had until the 8th day of July to put 
in bail, audit was actually put in on the 17th; notice 
was given, and an offer made to pay the costs accrued 
by the neglect, but the plaintiff having frightened 
Brundige into a cognovit, refused to relinquish 
his advantage. The case in the fourth term reports (a) 
shews that the affidavit in support of this application 
has been properly entitled ; the former rule lapsed 
in consequence of the absence of the counsel. The 
affidavit of merits is a sufficient ground for this jap- 
plication, and the statute of {b) Anne does not confine 
the relief to be given to a defendant or the bail, to 
an action upon the bail bond alone, but extends it to 
any other security to be taken from such bail. 



(a) 4 T. K. 688. (i) 4 & 5 Anne, o. 16, e. 20. 



TRINITY TERM, 4 GEO. IV., 1823. 35 

Macaulay, in reply. — Neither the defendant or his 
bail are within the equity of this statute. Notice 
should have been given that the defendant would put 
in, and perfect bail on some certain day; the bail 
should have been justified, and the bail piece filed. 
The bail should be entered in the first four days; it 
should have been entered by the fourth of July, but 
it appeiirs by the affidavit that it was not entered 
until the 17th. No notice was £;iver until the 22nd, 
when it was too late to get to trial at the following 
assizes, by which the plaintiff lost a trial. The ab- 
sence of counsel cannot be taken into consideration — 
the attorney was present. Twelve months after the 
return of the writ, an application is made to the 
equity of the court, which is, I conceive, with the 
plaintiff, and who is entitled to their protection. The 
cases in Willis and other cases are of irregular 
judgments, but here is a judgment upon the party's 
cognovit fairly obtained. 

Chief Justice. — Where the parties swear to 
merits, it is usual to grant relief to the bail. The 
party appears to me to be entitled to the equity of 
the statute. The judgment was taken as upon a 
bail bond. It must be stayed, standing as a security 
for the event of the trial. 

.'Per Curiam. — Eul^ absolute. 



36 TfelNIT^ TERM, 4 ©1:0. i% 1823. 

ORAMER v. NEL5LBS. 
When the juagia'ent of a Court of Requests had been set aside upon «he 
application of the defendant without any interference on tbeTjaj* of the 
plaintiff, the court rdfused to grant an attachment agatokt him for non- 
payment of the costs of removing the proceedings. As to costs in error, 
see Gildart t. Gladstone, 12 E. R. 688. 

In this ease proceedings and jadgments of the 
Court of Requests for the Grore district, had in a 
former term been removed into this court by certio- 
rari, at the instance of the defendant, against whom 
judgment had been entered in their court, and those 
proceedings were by an order of this court set aside 
with costs, and now, 

Srnall moved for an attachment against the plain- 
tiff, Cramer, for non-pa'yinent of the same npbn the 
usual affidavit. He contended that the defendant 
was entitled to the costs of the certiorari, and of 
setting aside the proceedings, and cited the statute 
of Henry the Eighth as in faVour of the application. 
The defendant had not opposed the issuiiig the cer- 
tiorari, or the setting aside the proceedings of the 
(iodlniiSsionefs thef eupon. 

Chief Jtjstice.— In this case a certiorari has 
issued to magistrates, and their proceedings have 
been set aside. The plaintiff, who never heard of 
this certiorari, is called upon to pay twelve pounds 
costs. I cannot bring my mind to issue an attach- 
meiit in this case. 

Per Curiam. — Attachment refused. 



'TRINITY ITEBM, 4 GE6. IV., 1823. 37 

Ei^KABETH Saunders v. GtEoegb Plattbh. 

Th6 court wJU not, under the provision of Hhe provincial statute for iasUittg 
commissions to examine iritneeses about to leave the province, order such 
oommission before dedairation fll«d. 

B<Mdwin obtained a rule this term to shew caiise 
why the plaintiff should not be at liberty to examine 
Ebbert Emerod as a Witness in this cause, upon the 
ttsual affidavit of his being about to leave the pro- 
vince, (the declaration had not been filed in the 
cause,) and now, 

Bouiton, Solicitor-G-eneral, shewed cause. — This 
application is out of season. The party making the 
affidavit is a stranger to the action, which is objec- 
tionable in lifnine ; it would be iinjuSt and absurd to 
examine witnesses before there was a charge in cOnrt 
'for the defendant to answer. There is no instance 
oi a commission issuing to examine witnesses before 
dieclaration filed; it would be contrary to common 
sense; the defendant could not cross-examine him, 
having no teowledge of the charge to be brought 
aj^iuet him. "When acquainted with the nature of 
the demand, he may perhaps give up his defence. 

BaMmn, contra. — The determination in this case 
will settle an iinportant point of practice. This appli- 
cation would, under the old statute (a) be granted as 
of course ; and the law is not altered by the new one, 
except that the commission is to be granted upon 
bearing the parties upon motion. The defendant 
will know the questions to be propounded, and will 
have every opportunity of cross-examination. The 
object of this part of the statute {b) is to prevent the 
inconvenience of parties going to trial without evi- 

(o) Provincial Statute, 84 Geo. III., o. 2, s. 23. (6) 2 Geo. IV., c. 1, s. 17. 



38 TBINITy TERM, 4 GEO. IV., 1823. 



dence ; the words of the clause are, " in any action 
now pending, or hereafter to be brought." The 
equitable construction of it is, that as soon as an 
action is brought, a commission may issue to prevent 
loss of evidence. The afiBdavit shew? all the neces- 
sary facts; and as to the objection of the party being 
a stranger who makes the affidavit, it is natural for 
him, and his duty as guardian to the plaintiff, to 
assist in this application. 

Chief Justice. — The party cannot be called into 
court without knowing for what, before declaration 
filed. I can conceive no propriety in an application 
like the present. In England, indeed, a party may 
obtain a commission from the Court of Chancery to 
examine witnesses, de bene esse. Under the former 
provincial statute application like the present might 
have been entertained, because, by that statute the 
declaration upon common process was attached to 
the writ, and the party could form an opinion of the 
nature of the action, and be prepared to cross-ex- 
amine his opponent's witness. 

BouLTON, J. — The statute evidently shews a dis- 
cretion in the court. The plaintiff's council must 
know that there can be no such thing as issuing a 
commission where there are no proceedings. 

Per Cunam. — This application cannot be granted. 
"When the plaintiff has filed his declaration, he may 
apply to a judge at chambers. 



trinity term, 4 geo. iv., 1828. 39 

Batman v. Strtjthbr. 

If the eheriff has returned a 'writ, though in an informal manner, the court 
did not grant an attachment against him in the first instance. 

Washburn moved for an attachment against the 
sheriff of Johnstown District for not returning a 
writ of fieri facias issued in this cause pursuant to 
rule. He stated that the sheriff had sent an infor- 
mal return to the attorney at Kingston, which had 
been returned to him. 

Chief Justice. — It would be too harsh to issue 
an attachment under the circumstances which the 
counsel had stated. You may take a rule nisi. 

Per Curiam. — Rule nisi granted. 



MiCKLEJOHN ET AL. V. HOLMES. 

Where a plaintiff has left the province the affidavit requiring security for 
costs should state that he has become a stationary resident in a foreign 
jurisdiction. 

Washburn moved that the plaintiff do give security 
for costs upon an affidavit, stating that the defendant 
had left this province, and was now residing in 
Lower Canada, if not lately departed thence for 
London. 

Chief Justice. — The affidavits usually state that 
the party has become a stationary resident in the 
foreign jurisdiction. This affidavit is not sufficient. 

Rule refused. 



[40} . 
MICHAELMAS TERM, 4 GrEO. IV., 1823. 



Present: 

Tg^ HoNQUBABjiE Ohiei Justice PawELi<. 
Mr. Justice BauLTOsr. 
Mr. Justice Campbell. 



Saunders v. Playtee. 



W^ere a pJai^Mff enWniti a. nonamt voluotarily the court will not aftwwaritif 
set it aside. 

This was an action of trover brought against the 
deputy sheriff of the Home District. The circum- 
stances proved, at the trial were, that the plaintiff, 
who had several years ago been married to one 
Saunders, had upon his decease taken possession of 
his effects without proving a will or taking out any 
letters of administration; she was afterwards married 
to one Elrod, then supposed to be an unmarried man, 
bu^t who, it was afterwards conjectured, had a wife 
living in the United States; no proof was however 
produced at the trial of Elrod's former marriage, 
or of his first wife being alive at the time of Ms 
marriage with the plaintiff. The plaintiff cohabited 
with Elrod for several years, and they continued in 
the possession of the property until it was seized by 
the defendant under an execution against Elrod. 
Upon this evidence the counsel for the plaintiff per- 
mitted a nonsuit at the trial, and now moved tor a 
rule- to shew cause why it should not be set aside. 
Sed per Curiam where a party voluntarily suffers a 
nonsuit it cannot afterwards be set aside. 

Rule refused. 



MICHAELMAS TEEM, 4 GEO. IV., 1823. 41 

TuLLT V, Graham. 

This court will give leave to withdraw a demurrer upon payment of costs and 
pleading issuably though the plaintiff may have lost a trial. 

Boulton, Solicitor-Greneral, moved for leave to 
withdraw the demurred filed ia this cause, and to 
plead the general issue although the plaintiff had lost 
a trial. He contended that although it was not the 
practice in England to allow a demurrer to be with- 
drawn after trial lost, the reason did not apply here. 
In England a party upon obtaining judgment upon 
demurrer assessed his damages immediately by writ 
of enquiry directed to the sheriff, whereas in this 
country he could only do it at the assizes, the conse- 
quence of which was, that a plaintiff would enforce 
his judgment (if he obtained one) at as early a period 
by going to trial as by arguing a demurrer. 

That as the plaintiff would not be prejudiced by 
the demurrer being withdrawn, the court would al- 
low it; for he contended that prejudice did not mean 
that the plaintiff would be deprived of any advantage 
he had obtained of preventing a defendant making 
so good a defence, but that a plaintiff would not ob- 
tain the fruits of his judgment at so early a period. 

Macaulay, contra. — Contended that it was quite 
contrary to the, practice to withdraw a demurrer 
after a trial lost, {a) That if tbis demurrer, which 
was merely filed for delay, were argued, the plaintiff 
would have a judgment in his favour, and would 
only have to assess his damages at the assizes, 
whereas if this procedure were allowed, a plaintiff 
might sustain serious injury by absence of witnesses, 

(a) Tidd. 



42 MKHAELMAS TERM, 4 QB6. IV., 1823. 

occasioned by the defendant filing a frivolous de- 
murrer, merely for the purposes of delay— se«?. 

Per Curiam.— The demurrer may be withdrawn 
upon payment of costs and pleading issuably. 



Orsek v. Stickler. 

The motion for a new trial must be made within the first four days of the 
term succeeding the trial, i. e., before the expiration of the rule for 
judgment. 

BouUon, Solicitor-G-eneral, moved for a rule nisi 
for a new trial in this cause though the first four days 
after the commencement of the term had elapsed. 
He stated that it had not been unusual to allow mo- 
tions for new trials to be made after the expiration 
of the rule for judgment, and that the English rule 
in that respect has not been strictly adhered to. 
That he had not been able to make the motion 
earlier, not having received his brief. 

Jones, contra. — It is not in the breast of the court 
to allow motions for new trials to be made after 
the four days have expired. The English practice 
has been adopted by rule of this court. 

Chief Justice. — The rule for moving for new 
trials has been considered as extending to the first 
four days on which the court actually sat, but the 
practice has lately become more rigid. 

Per Curiam. — ^Rule refused. 



Michaelmas teem, 4 geo. rv., i823. 43 

Patbrsok v. McKay. 

A icire faeicK will not issue against an heir under the provisions of the 6th 
Qeo. 11., although an execution mn^ have i^ued agaiLst the goods and 
chatties in the hands of the administrator, and a return of nulla bona has 
been made. 

After a judgment and execution against the admin- 
istrators of -- — McKay, deceased, and a return of 
nulla bona, the plaintiff issued a scire Jacias under 
the provisions of 5th Geo. II., against the defendant, 
his heir, to shew cause why execution should not 
issue against the lands and tenements to which he 
had become entitled, as heir to the deceased. To 
this scire facias, the defendant demurred generally. 

BmiUon, Solicitor-G-eneral, in support of the de- 
murrer. — 'There is no instance which I can find of a 
scire facias having issued in this case either in the colo- 
nies or in England; it might, indeed be convenient to 
the parties, but can only be authorised by an act of the 
legislature; this court, as the matter now stands, have 
no authority to issue it ; there are only two cases in 
which a scire facias can issue, where a judgment has 
not been proceeded upon within the time prescribed 
by law, which raises a presumption that it may have 
been satisfied ; or where the party 'to the ofiginal 
action is deceased, to revive the judgment against his 
representatives; neither of which is the case here; if 
this writ could be supported it would be to place two 
distinct defendants upon the same record; there 
would be two distinct judgments operating at the 
same time, one against the goods and chattels in the 
possession of the administrator, and the other against 
the lands and tenements of the heir; a scire fatias must 
be accompanied with privity, either of blbod, estate, 
contract, or representation. By the common law 
there was no privity even between exeCtitol'S aiid 



44 MICHAELMAS TERM, 4 GEO. IV., 1823. 

administrators, though now there is by express 
statute, (o) there is no privity in this case, ergo, the 
writ cannot lie. As to inconvenience, the same exists 
in many cases for which writs are constantly issued 
in England, but which cannot issue in this country ; 
as that of dower, summons in severance, and perhaps 
the beneficial writ of account, but those as well as 
that in the case which is now before the court, can 
only be remedied by the legislature. 

Macaulay, contra. — The application of general 
principles to particular cases is not always strictly 
correct, as in this case. The argument, that because 
no 5C2Ve facias has issued in a case of this sort, and 
therefore cannot issue, is insufficient; it perhaps 
would not have been necessary to resort to this 
remedy, that no execution would lie against lands 
and tenements, as assets in the hands of the adminis- 
trator, and I conceive that the intention of the statute 
should be effected in one way or other. The act of 
parliament by fair implication creates a sufficient 
privity between the parties — the proceeding is quite 
analogous to that in England against the heir upon 
judgments recovered against the ancestor. 

By the statute real property is liable to the simple 
contract debts, in like manner as real estates are by 
the law of England liable to the satisfaction of debts 
due by specialty, and are subject to the like reme- 
dies, proceedings and process in any court of law or 
equity in any colony, for seizing or selling them, and 
in like manner as personal estates in any of the colo- 
nies are seized, extended, sold or disposed of, for the 
satisfaction of debts. The words "in like manner" 

(a) 17 C. II., 0. 8, s. %. '~ ~~ 



MICHAELMAS TERM, 4 GEO. IV., 1823. 45 

do not mean by a like proceeding, but that the lands 
shall be liable in the same manner or equally so as 
they are in England. The court have decided that 
no action will lie against the heir in the first instance, 
upon the principle, I presume, that so an heir might 
be ruined without resort haviug been had to the per- 
sonal estate. This proceeding after a return of nulla 
bona, as directed by the provincial statute, 43 Geo. 
III., remedies this inconvenience ; under it the heir 
has an opportunity of shewing fraud, distribution of 
assets to specialty creditors, (who, too, without this 
proceeding, might be defrauded of their priority over 
simple contract debts,) or any other circumstances, 
which an heir could show in a scire facias upon a 
judgment against his ancestor. It appears to me that 
the proceeding we have adopted is well calculated 
for the ends of justice, and is authorised, though not 
in express terms, by the spirit of the English and 
provincial statutes, and that not to support it would 
be to render these statutes of no effect. 

Boiilton, Solicitor-General, in reply. — The ques- 
tion is whether the remedy adopted is a proper one. 
I think the counsel on the other side concludes him- 
self when he says that an action will not lie against 
an heir-at-law upon a simple contract debt, for a 
scire facias is an action to which a defendant may 
plead. Should this proceeding be supported there 
would be a judgment and execution against the de- 
fendant. Could this be without his being sued? 
The latter part of the statute does not contemplate 
the death of the party debtor. How are lands and 
tenements to be assets under the statute ? In like 
manner as they are assets liable to debts by specialty, 



46 MICHAELMAS TEBM, 4 GEO. IV., 1828. 

and in no other way. They are liable to simple 
contract debts during the life of the party, but after 
his decease only to specialty debts, with this differ- 
ence, that here the lands may be sold, but in England 
the proceeding is by elegit or extendi facias. 

No argument can be drawn from the provincial 
statute requiring a return of nulla bona, that must be 
intended to apply to those cases where there is a 
judgment against the testator or intestate. The 
counsel on the other side has certainly mistaken his 
remedy, where there is no privity there can be no 
sci. fa.; statutes have been passed to remedy the 
want of privity in several cases, and nothing but a 
legislative provision can create a privity in this case. 

Campbell, J. — I have no doubt but that it was 
the intention of the legislature, to place lands in the 
colonies upon the same footing with goods and 
chattels. In other colonies they have followed up 
the British statute {a) by several enactments point- 
ing out the mode by which it is to be carried into 
effect; only one writ issues upon the judgment, di- 
recting the sheriff in the first place to sell the goods 
and chattels, if they are insufficient, to sell the lands, 
and in case of their insufficiency, to attach the per- 
son. This method appears to me to be a very good 
one, and would perhaps be salutary here^ if we liad 
authority to make use of it, but as it is I think the 
only remedy is an action de novo. 

Chief Justice. — By the law of England, in Eng- 
land the administrator is considered as having assets 

(a) 5 Geo. 11. 



MICHAELMAS TERM, 4 GEO, IV., 1823. 47 

as long as any colonial lands remain unsold. In 
this province the executions which issued under the 
British statute went at once against the lands, as 
well as the personal property, but a provincial 
statute (a) was afterwads made to save the lands, by 
directing that they should not both be included in 
the same writ, but that a Ji. fa. should first issue 
and be returned against the goods. I lament the 
passing this act, for I think a rule of court restrain- 
ing the sheriff would have been better. 

The administrator of an intestate is the person to 
resort to for payment of a debt as he has possession 
of the goods, unless where the heir is bound by spe- 
cialties. It has been determined that lands cannot 
be sold in an action against the administrator, and 
yet I do not see why the party should be driven to 
a second action. These difficulties furnish a strong 
inducement to some legislative provision, but as it is, 
the scire facias does not appear to me to be a remedy 
within our power. 

Per Curiam. — Judgment for defendant. 



The King v. Phelps. 

Where an inquisition had been found against tlie defendant under the pro- 
vincial statute 54 Geo. III., the court refused to set the same aside- on the 
ground that thelands vested in the Crown by that inquisition had been grant- 
ed by the Mohawk Indians to the defendant, for a term of 999 years, in 
trust for the support of his wife (a Mohawk woman) and three children. 

An inquisition in this case had been found against 
Epaphrus L. Phelps in favour of the Crown, under 
the provisions of the provincial statute, 54 Geo, III., 
for declaring certain persons therein described aliens, 

(a) 3 Geo. III., c. 1. 



48 MICHAELMAS TERM, 4 GEO. IV., 182S. 

and vesting their estates in his Majesty. By a subse- 
quent statute, Esther Phelps had been permitted to 
traverse the inquisition found against her husband 
Bpaphrus Lord Phelps. The record, which was of 
Trinity Term, 1821, stated that it had been found' 
by an inquisition indented, &c., at the township of 
G-rimsby in the district of Niagara, on the 28th day 
of January, in the 68 th year, &c., before Abraham 
Nelles, Esquire, one of the commissioners of the late 
King, &c., to enquire, &c., by the oath of William 
Nelles and others, (the jury,) that Epaphrus Lord 
Phelps in the commision named, on the day of com- 
mitting the high treason in the said commission spe- 
cified, to wit, on the 1st day of June, in the 53rd 
year, &c., and also on the day of the outlawry of the 
said Epaphrus L. Phelps, was seised of certain par- 
cels or tracts of land, to wit, the unexpired term of 
a lease for 999 years, made to him by Captain Brant 
of 1000 acres of land, and of other land on the 
Grand river (in the record and inquisition described) 
being part of the Indian lands, &c., and that the 
commissioners, the premises aforesaid, into the hands 
of the said late Lord the King had taken and caused 
to be seized, &c., as by the commission was com- 
manded, &c. That on Saturday, the last day of 
Trinity Term, by force of an act of the provincial 
parliament of this province, made and passed in the 
second year, &c., entitled an act to afford relief to 
one Samuel Hull and the said Esther Phelps, 
comes the said Esther Phelps in said act named, 
wife of the said Epaphrus L. Phelps in said commis- 
sion named, by her attorney and prays oyer, &c., 
which being read, &c., she complains that she by 
colour of the premises is greviously vexed and dis- 



MICHAELMAS TERM, 4 GEO. IV., 1823. 49 

quieted, and protesting that the commission and in- 
quisition are not sufficient in law, and to which she 
has no necessity nor is bound by the law of the 
land to answer, for plea saith, that on the 25lh day 
of October, in the year 1724, the G-rand river, in the 
said district of Gore, in the said province of Upper 
Canada, constituted and formed part of the province 
of Quebec, that the Mohawk Indians, and others of 
the Six Nations of North American Indians, being 
on the same day, &c., and long before, the faithful 
and attached allies of his late gracious Majesty, 
King G-eorge III., and especially in the war then 
lately before that time carried on between his said late 
Majesty and the United States of America, by the 
event and pressure of which war, the said Indians 
were obliged to withdraw from their settlements and 
possessions within the said states, and his said late 
gracious Majesty, in consideration of that fidelity 
and attachment so early manifested to his interest 
by the said Mohawk Indians, and of the loss of their 
settlements and possessions which they thereby sus- 
tained, was pleased to direct that a convenient tract 
of land under his protection should be chosen as a 
safe and comfortable retreat for them, the said Mo- 
hawks, &c., who had either lost their settlements 
within the territory of the said American states, or 
who wished to retire from those states to the British; 
and Sir Frederick Haldimand, his said late Majesty's 
Captain-General and Governor-in-Chief of the pro- 
vince of Quebec and the territories depending there- 
on, &c., having in obedience to such his said late 
Majesty's directions, and at the desire of many of 
the said Indians, &c., purchased a tract of land from 
the Indians, that is to say the aboriginal Indians 
7 



50 MICHAELMAS TERM, 4 GEO. IV., 1823. 

occupying the same, situate between the lakes On- 
tario, Erie, and Huron, did afterwards, to wit, on 
the same day, &c., and while the said province of 
Upper Canada formed part of the province of Que- 
bec, at the castle of St. Lewis at Quebec, &c., by in- 
strument under his hand and seal at arms, as Cap- 
tain-General, &c., and in his late Majesty's name, 
authorise and permit the said Mohawk nation, &c., 
to take possession of, and settle upon, the banks of 
the river commonly called the Ouse or G-rand river, 
running into lake Erie, that is to say, the said Grand 
river, &c., allotting to them for that purpose, six 
miles deep from each of the said rivers, beginning at 
lake Erie and extending in that proportion to the 
head of the said river, to them and their posterity 
for ever, by which said authority, permission 
and allotment, the said Mohawk nation, &c., after- 
wards and on the same day, &c., did enter upon 
and take possession of the aforesaid allotment; and 
being so possessed, &c., they, the said Six Nations 
Indians, afterwards, to wit, on the 1st day of 
May, in the year 1804, at the Grand river, <i-c., by 
indenture bearing date the same day and year, &c., 
and made between them the said Six Nations Indians 
residing, &c., by Captain Joseph Brant, principal 
chief and agent for them the said Six Nation Indians, 
duly authorised, did, in consideration of the rents] 
covenants, and agreements in the said indenture men- 
tioned, &c., grant, demise, lease, and to farm let unto 
the said Epaphrus Lord Phelps, his heirs, executors, 
administrators, and assigns, all that certain tract] 
&c., (land mentioned iu the inquisition,) to hold the 
same for the term of 999 jeavs, for providing for one 
of the loomen of the said Mohawk nation, and three 
children horn of her the said woman, by the said 



MICHAELMAS TEBM, 4 GEO. IV., 182.3. gl 

Epaphrus, that is to say, in trust for the purpose of 
providing for and maintaining the said woman and 
the said three children according to the custom of 
the said Six Nations. Averments that the lease 
mentioned in the inquisition and the indenture last 
set forth, are one and the same; and that the tra- 
verser is the woman mentioned in the indenture, and 
that the land mentioned in the indenture is the same 
with that mentioned in the inquisition. That the 
traverser on the 1st day of June, in the 53rd year, 
&c., and also on the day of the outlawry of the said 
Epaphrus Lord Phelps, and also at the time of tak- 
ing the said inquisition, was and still is by virtue of 
said indenture, possessed of the issues and profits of 
the parcels and tracts of lands in said inquisition 
mentioned, to wit, &c., and all and singular which 
things, &c. The traverse concludes with a prayer 
for judgment, that the hands of our said Lord the 
King be thence amoved, and that the traverser to 
her possession, together with the issues and profits 
therein in the meantime perceived be restored. 
The Solicitor-General on the part of the Crown de- 
murred to the traverse generally, as not being suffi- 
cient in law to amove the hands of the said Lord the 
King from the possession of the tenemeijts aforesaid, 
and prayed judgment, and that the tenements, &c., 
in the hands and possession of the said Lord the 
King may remain, &c. 

Boulton, Solicitor-Greneral, in support of the de- 
murrer. The traverse in this case is insufficient. It 
sets out that the traverser is an IndiaA woman, and 
that there is a custom among the Indians, to bestow 
lands in the manner stated, and that Brant made 



52 MICHAELMAS TERM, 4 GEO. IV., 1823. 

such a conveyance for her benefit; but it shews no 
good title in him, or the Indians to do so. By the 
traverser's own shewing, she is a foreigner, and con- 
sequently no more entitled to hold lands than a 
Frenchman, or any other foreigner ; for the- Indians 
are bound by the common law. 

Even if the title were good, it only conveyed a 
chattel interest, which a man cannot hold in trust for 
his wife. 

Should the inquisition have been ill found, yet the 
lands being once vested by the finding in the Crown, 
they cannot afterwards be divested, without the tra- 
verser shews a better title, as appears in Dyer. 

Baldwin contra. — Where both parties claim under 
the same deed neither can impugn it for defects, and 
therefore defects in title under those deeds (if such 
there are) cannot be set up by the Crown. 

The foundation of the title from General Haldi- 
mand is evidently a treaty, and as such must be 
recognised by the court, for all courts of justice will 
recognise treaties, as is constantly seen in cases of 
seizures, &c. 

The Indians must be considered as a distinct, 
though ieudatory people; they were transported 
here by compact ; they are not subject to mere posi- 
tive laws, to statute labour, or militia duty, though 
perhaps to punishment for crimes against the natural 
law, or law of nations. 



MICHAELMAS TERM, 4 GEO. IV., 1823. 53 

It may be considered as a ridiculous anomaly, but 
it appears from Vattel {a) that these sort of societies, 
resident within and circumscribed by another terri- 
tory, though in some measure independent of it, 
frequently exist, and that the degree of independ- 
ence may be infinitely varied; and however barbar- 
ous these Indians may be considered, the treaty 
under which they migrated to and reside in this 
country is binding. 

Phelps had not such an estate as he could forfeit; 
it is a trust limitted to him for providing for the 
traverser, Esther Phelps and her children, plainly 
expressed in the words of the deed, and as laid down 
in Shepherd's Touchstone, not forfeitable for his trea- 
son, (/;) though it perhaps might be by that of tlie 
cestui que trust. Should the court consider this in- 
strument as a trust deed founded upon sufficient 
consideration, namely, that expressed in it of sup- 
porting Mrs. Phelps, then they will decide in favour 
of the traverser; and on the other hand, if insuffici- 
ent, the inquisition will be quashed as nugatory; 
Phelps having nothing to forfeit, as the trust resulted 
for the benefit of the grantors, (c) 

BouUon, Solicitor-G-eneral, contra. — If the title 
placed in the Crown by this inquisition is at all con- 
sistent, it cannot be disturbed, {d) though special cir- 
cumstances might induce the Crown to re-grant the 
land. The supposition that the Indians are not sub- 
ject to the laws of the country is absurd; they are 
as much so as the French loyalists who settled here 

(o) C. 1, s. 5, 6. C. 16, s. 194, 5, 6. {b) Touchstone, 507 n. 8. 
(c) Touchstone, 2 609. Bao. abr. uses and trusts 82. Preston 251. 
{a) Com. Dig. prerogative. 



54 MICHAELMAS TEEM, 4 GEO. IV., 1823. 

after the French revolution, who came to this pro- 
vince from a country perfectly independent, and of 
which the independence was never doubted; and 
supposing them not to be so, confesses the grant 
from General Haldimand to be (as it was in fact) 
not warranted by law — as to the pretended consid- 
eration of the deed, it is perfectly nugatory; it pur- 
ports to be made for the support of Phelps' wife 
and children, whom he was bound to support him- 
self, nor could a husband be a trustee of a chattel 
interest to the use of his wife — and even supposing 
her to be a hona fide cestui que use she could not 
dispute the legal estate of the Crown once vested. 

Fer Curiam. — {Absente, Powell, 0. J.) — Judg- 
ment in favour of the Crown. 



GrARDNER V. BURWELL. 

Where the witness who proved the notice required hy the statute to be 
given to a J. P. before action brought, had in his examination in chief 
sworn that he had served a true copy of the notice produced in court, 
but upon his cross-examination said that it might vary a word or two, 
and the judge at nisi prius had in consequence directed the jury to find a 
verdict for the defendant. The court granted a new trial. 

This was an action against a justice of the peace, 
requiring the notice of one month prescribed by the 
statute, (a) The witness who was called to prove 
the notice at the trial deposed that he had served a 
true copy of that produced in court, but upon his 
cross-examination said, that he did not know it was 
an exact copy, it might vary a word or two. Upon 
this evidence, the judge who tried the cause, directed 
a verdict for the defendant, upon the ground that the 
exigency of the statute had not been complied with. 



(a) 24 Geo. U., c. ii s. 1, 



MICHAELMAS TBRM, 4 GEO. IV., 1823. 55 

On a former day, in this term, Baldwin had obtained 
a rule to shew cause why a new trial should not be 
granted on the ground of misdirection in the judge 
who tried the cause, but the rule has been dis- 
charged; he contended that the evidence was suffici- 
ent to prove the notice, that if there was any defect 
in it, that should be shewn by the defendant who 
was in possession of it. 

Baulton, Solicitor-Greneral, and Ralph, on the 
other side, had argued that though if the plaintiff 
had given notice to produce the copy, and the de- 
fendant had not done so, the plaintiff might perhaps 
have given viva voce evidence of its contents; yet as 
no such notice had been given, the evidence of ser- 
vice was not sufficient to answer the exigency of 
the statute; that the words omitted might be those 
most particularly required by the statute, the nature 
of the action, or the name or address of the attorney. 
On this day the court {dissentiente Boulton, J.) gave 
their opinion that the evidence given answered the 
exigency of the statute; that it was too violent a 
presumption to infer that the notice was incorrect 
after the witness who had provided the service had 
sworn it was a true copy, merely from the scruples 
he expressed upon his cross-examination, and the 
mOre especially as it was in the power of the plain- 
tiff to shew the defects, if any, by its production; 
they therefore directed 

A new trial. 



56 michaelmas tebm, 4 geo. iv., 1823. 

McGregor v. Scott. 

Where a plaintiff had arrested a defendant for aoonsiderable sum of money, 
and evidence had been given in court of a larger sum being due to 
the plaintiff, and the caupe was then referred, with other matters, to ar- 
bitration, and the arbitrators awarded the possession of a mill to the 
plaintiff and six or seven pounds only in money. The court refused to 
give costs to the defendant under the provincial statute for preventing 
vexatious arrests. And semble, the words of the statute, " being arrested 
and held to special bail," are satisfied by a defendant being arrested and 
imprisoned. 

This was an application by Ridoiit for costs to be 
ordered to the defendant, under the provisions of the 
provincial statute 49 Geo. 3., cap. 4, for the more 
effectual preventing frivolous and vexatious arrests. 

This cause had been brought into court at the as- 
sizes for the western district, and evidence given of 
a much larger sum being due to the plaintiff than 
the sum sworn to, but a juror was withdrawn by 
consent of the parties, and this and two other suits 
referred to arbitration. The arbitrator only awarded 
six or seven pounds to the plaintiff with the posses- 
sion of a mill of considerable value. The defendant 
had not put in special bail to the action. 

Elliot, against the application, contended that to 
entitle a defendant to costs under the statute, he 
must have put in special bail, the words of the 
statute being "arrested and held to special bail," 
and that at any rate under the circumstances of this 
case the defendant was not entitled to costs. 

Ridout, contra. — There is no distinction between 
special bail and bail to the sheriff. 

Chief Justice. — I consider that if a party is put 
in prison, it is the same thing as to the operation of 



Ml&HAEliMAS TteRM, 4 GEO. IV., 1823. 57 

this act, as if M had put in Special bail, but under 
the circumstaaces 6f this case, T do not consider the 
defendant as entitled to the benefit of this statute. 

Campbell, J. — The question is Whether the plain- 
tiff had sufficient justification at the time he took the 
affidavit. 

Per Curiam. — Application refused. 



McIntosh v. White. 

An application for costs under the provincial statute, 49 Geo. III., cap. 4, 
must be supported by affidavit, stating that the defendant was arrested 
without reasonable ol" probable cause. 

Made an application for eOst^ for the defendant 
under the provincial Statute, 49 G-eo. Ill, cap. 4, but 
it Was not stated in the affidavit to ground the appli- 
cation that the defendant Was arrested without rea- ^ 
sonable or probable cause. 

Per CMn0m.^-^Application refused. 



TeKRY v. STARgWBAtHER, 

Where in an action for deffflmation brought by a f'efrson deseHbiiig himBdIf 
in the declaration as a druggist, vender of medicines and apothecary, the 
i«itta«B6es plutoVed- that several plersons practising physio had pui^ciased 
medicine from him ; this evidence upon a motiton for a nonsuit was con- 
fiivtered sis' sufficient tO' supptirt' the Verdict. 

TM& Was an aetiOfl tried at the assizes foi' the 
MSscga^ district, foif defaming the plaintiff in his 
bu^ness of a drUggii§t, vender of m'ed&ines, and apo- 
thecary. The facts of defamation; Were satisfactorily 
proved, the evidence adduced to support the intro- 
ductory part of the declaration, namely, that the 
plaintiff e:tercised' the profession of a druggist^ ven- 
der of medicines, and apoth'ecai'y was, that he kept 
8 



58 MICHAELMAS TERM, 4 GEO. IV., 1823. 

a drug store, and that several persons practising 
physic, had purchased medicines from him; a ver- 
dict was found for the plaintiff with £10 damages. 
A nonsuit had been moved for at the trial, but had 
been refused, and now, Boulton, Solicitor-G-eneral, 
moved for a rule to shew cause why the verdict 
should not be set aside, and a nonsuit entered on the 
ground that no evidence had been produced of the 
plaintiff having exercised the business of an apo- 
thecary. In actions of this kind, the whole gist de- 
pends upon the fact of exercising the trade set out 
in the introductory part of the declaration, as laid 
down in Smith v. Taylor, [a] where for want of that 
proof, the verdict was set aside; the whole allegation 
must be proved, viz., that the plaintiff was a drug- 
gist, vender of medicines, and apothecary at the time 
of the supposed injury, and has ever since continued 
so. If a person allege more than necessary he 
must prove it; the evidence in this case only goes to 
prove that the plaintiff kept a druggist's shop. An 
apothecary, as appears by the explanation of the 
term in dictionaries and encyclopaedias of repute, is 
one who practises the art of pharmacy, which is a 
very different business to that of a mere druggist, 
who only sells the article in its rude uncompounded 
state. An apothecary in England not only com- 
pounds medicines, but prescribes them, and should 
therefore be a person of skill, to injure whose repu^ 
tation would call for much heavier damages than to 
defame that of a mere vender. 

This plaintiff has chosen to designate himself of 
three trades or professions, each of which has its 



(a) 1 Bos. and Pal. 196. 



MtCHAELMAS TEEM, 4 GEO. IV., 1823. gg 

individual meaning, but he has merely proved his 
keeping a druggist's shop, and cannot, therefore, 
maintain this verdict. 

Washburn, contra. — These matters of inducement 
the books say, may be omitted, as well in the action 
of slander as in other actions on the case. It was 
clearly proved at the trial that the plaintiff kept a 
druggist's shop, and as to distinctions arising from the 
three terms in the declaration, two are synonymous. 
The pleading the general issue with a justification, 
admits that the plaintiff is the character which he 
describes himself to be, and the general reputation 
of his practising physic was proved. 

Boulton, Solicitor-G-eneral, in reply. — It is extra- 
ordinary that counsel on the other side should con- 
sider these words as matter of inducement only. A 
person cannot read the authorities without seeing 
that they are matter of substance, the very gist of 
the action; the way to ascertain whether an allega- 
tion is material or not, is to strike it out of the 
declaration, and observe whether it has its full effect 
without it. 

Chief Justice, {Assentiente Campbell, J.) — There 
is a specific and distinct meaning to the term apothe- 
cary as well as to that of druggist, and where terms 
of art are in question, reference may be had to dic- 
tionaries of authority; it however appears to me, 
that proof of having sold medicines as well as drugs, 
having been adduced at the trial, is sufficient to en- 
title the plaintiff to maintain his verdict. 

Boulton, J. — I do not consider that there is suffi- 



6:0 MICHAEIMAS TEEM, 4 QBO. IV., 1823. 

cient evidence to support the allegation of the plain- 
tiff being an apothecary, which I think is a sine qua 

non. 

Per Curiam. — Rule refused. 



i - •■" '- Bbadstead v. Wtllie. 

Where in an action for seduction of the plaintiff's daughter, evidence had 
been given of connivance on the part pf the mother, and great negii^en«e 
on the f>art oif the father, and the jury found a verdict for the plaintiff 
with ^£200 damages, the court granted a new trial. 

This was an action brought to recover damages 
for loss of service by the seduction of the plaintiff's 
daughter, and tried before the Chief Justice at the 

assizes for , and a verdict for the plaintiff for 

£200. The &cts of service and criminal intercourse 
were proved, and that the plaintiff's daughter had 
borne a child to the defendant. On the part of the 
defendant it was proved, that the witness (the son-in- 
law of plaintiff) had, previous to his marriage, slept 
with another young man in one bed, and the two 
daughters of the plaintiff in another bed in the same 
room, (a two bedded room.) That he had kin in 
bed with both the daughters previous to his mar- 
riage; that the indecencies which took place between 
plaintiff's daughter and defendant, were notorious 
to the family; that they were laying in every corner 
of the house to be stumbled over. That the mother 
had been informed of the indecencies which took 
place between her daughter and the defendant, but 
did not discountenance them; that the plaintiff had 
also been informed of them, and though he repro- 
bated the defendant's conduct greatly, he took no 
means to prevent it. 



MICHAELMAS TERM, 4 GEO. IV., 1823. 61 

The Chief Justice observed at the trial, that this 
was a state of manners which could not, at least in 
England, be considered as affording a ground for 
this action, although it had been admitted that the 
plaintiff was a decent orderly man, and had family 
prayers in his house every day. 

Boulton, Solicitor-Greneral, had in a former part 
of the term, obtained a rule nisi to set aside the ver- 
dict and grant a new trial; and now Robinson, Attor- 
ney-Grcneral, shewed cause. This is a question alto- 
gether for the consideration of juries; it is amoral 
and not a legal one. The damages in this case can 
by no means be considered as outrageous or exces- 
sive, which alone would warrant the interference of 
the court, as laid down in all the authorities. In a 
case of crim. con., (between which and the present 
there is no essential difference,) though the real in- 
jury was merely nominal, a jury gave £5,000 dam- 
ages, and the court refused to interfere, (a) 

This vice, which is so mischieyous to the morals 
of a country, has become too prevalent; and though 
parents should guard the conduct of their daughters, 
how great an opening may be made for inroads on 
the other side, by courts interfering with the verdicts 
of juries? In this case there is nothing to entitle the 
defendant to consideration; he lived in the house of 
the parent; was a man of forty or perhaps older; was 
guilty of daily indecencies in the presence of the 
family, to which the father was not privy: these cir- 
cumstances have all been considered by the jury, 
and I cannot conceive they were wrong in their de- 
termination. 

' ^^^^mng^tm, I ill! II » n I III I 11 I ■ i II J L I .1 I i ij - I I.- I II- I.I ■■— .a nn ^_„__^ 

(a) Duberly v. Gunning. 



62 MICHAELMAS TEEM, 4 GEO. IV., 1823. 

Boulton, Solicitor-aeneral, and Jones, contra.— 
Actions of this nature are supported on the ground 
of injury to the parent's feelings; but where such 
transactions take place under his own eye, his conduct 
is much worse than weak or silly if he does not pre- 
vent them. If a father opens a door for misbehavi- 
our he cannot say where it is to stop, and he shall 
not afterwards come and say to a jury, I have by 
my own folly brought this inconvenience on myself, 
and now I come to you for damages. If this jury 
have not acted upon vicious, they have acted upon 
erroneous feelings ; they must have supposed they 
were to punish the error of the defendant, whether 
the father had received any injury to his feelings or 
not. In the case of Smith and Book in this court, a 
new trial was granted because the plaintiff had per- 
mitted her daughter to lay upon a bed with the de- 
fendant, a case in its general circumstances by no 
means so strongly calling for a new trial as the 
present. 

Per Curiam. — Eule made absolute upon payment 
of costs. 



Lakge v. Pbrkiks. 

In an action for goods sold, and upon an account stated, wliere the plaintiff's 
demand had heen of several years' standing, and the jury gave a verdict 
for £18, the court upon a motion for a new trial considered, that evidence 
of an acknowledgment by letter of an account being due, and of an account 
having been read over to the defendant to which he made no objection, 
coupled with evidence that an item of two pounds which was contained in 
the bill of particulars produced in court, was the same with that contained 
in the account so read over to the defendant, and with the witness' belief 
that the accounts were the same, was sufficient to support the verdict, 
though one principal ground of the witness' belief of the accotmts being 
correspondent arose from his knowledge of the plaintiff's character. 

This was an action of assumpsit for goods sold and 
upon an account stated, tried at the assizes for the 



MICHAELMAS TERM, 4 GEO. IV., 1823. 63 

Home District, and a verdict for the plaintiff for 
£18. 

The material part of the evidence, as it appeared 
upon the judge's notes, was, that there were dealings 
between the plaintiff and defendant, commencing in 
the year 1817, and continued until the year 1819. 

That the defendant had written to the plaintiff 
acknowledging an account and apologising for the 
neglect of payment ; that the defendant being near 
the plaintiff's store, requested his account, upon 
which the plaintiff called him in, and read over an 
account to him in the presence of the witness (Kel- 
lar) ; that he listened attentively to it, and made no 
objection ; that after the commencement of the suit, 
the same witness copied an account out of the plain- 
tiff 's book, which account being produced in court, 
he swore he believed to correspond with that read 
over in the presence of the defendant; he also recol- 
lected one item for two pounds as composing a part 
of the account read over to the defendant. Upon 
his cross-examination he said, that he believed the 
account which he copied from the plaintiff's book and 
produced in court, corresponded with that read over 
to the defendant, because the plaintiff had told him 
so, and he believed him to be an honest man. 

Boulton, Solicitor-G-eneral, had in the former part 
of the term, obtained a rule nisi to set aside the ver- 
dict and to enter a nonsuit, or to have a new trial, 
upon the ground that improper evidence had been 
received at the trial, or, if the evidence was admissi- 
ble, it was insufficient to support the issue; and now 
Baldwin shewed cause : he contended that the evi- 



64 MICHAELMAS TEEM, 4 GEO. IV., 1823. 

dence appearing upon the judge's notes was properly 
received and sufficient to support the verdict, a letter 
acknowledging an account, an account read over and 
no objection taken, a long tacit acknowledgment, 
the account produced in court, sworn to be the same 
as that read over to the defendant, to the best of a 
witness' belief. 

Boulton, Solicitor-Greneral, contra. 

The first question is whether Kellar, the witness, 
should have been allowed to produce this account; I 
contend that he should not; an account or memoran- 
dum can only be produced to assist the memory of a 
witness, but he cannot be permitted to produce an 
account, that he may swear he believes it to be true, 
because another person told him so, more particularly 
the plaintiff in the action; it would be receiving proof 
in fact upon the plaintiff 's own ipse dixit; the witness 
could only remember an item of two pounds, which 
does not at all prove the tru^h of any of the other 
items; he should have been able to identify the account 
read over with the one proved, or should have sworn 
to the particular items. The admission of evidence 
of this sort, which is mere hearsay, and that from the 
plaintiff, would subject every person in the country 
to the greatest frauds and impositions. In this case 
the plaintiff might have added new items or altered 
the sums after the account was read over. Upon 
this evidence, which I contend should not have been 
admitted, the plaintiff has obtained a verdict which 
he could not have obtained without. The account 
should have been taken from his hand, unless he used 
it merely to refresh his memory; but he was allowed 



MICHAELMAS TERM, 4 GEO. IV., 1823. ^5 

to read it, merely upon the plaintiff's assertion that 
it was correct, his opinion of whose honesty can be 
no evidence at all. The inconvenience, difficulties 
and hardships of proving accounts by persons who 
have no clerks, have been urged, but they have it in 
their power to take notes or memorandums, and it 
would be a much greater hardship upon the country 
and more productive of fraud, if accounts were 
allowed to be proved by this sort of evidence. 

BouLTON, J. — There is no positive proof in this 
case of the delivery of the goods except to the 
value of two pounds. I should be sorry that merely 
being present at the hearing of an account, without 
acquiescence, should be considered as proof of the 
items contained in it. I dare say we all consider the 
plaintiff as an honest man, but it appears to me, that 
in this case the necessary evidence is wanting, that 
there is not the slightest testimony of the delivery of 
the goods, and that the verdict cannot be supported. 

Campbell, J. — This is an action for goods sold 
and delivered, the sum sought to be recovered is 
small, but nevertheless the verdict ought to be sup- 
ported by proper evidence, if not, a new trial should 
be granted. As to hearsay evidence no one would 
be less inclined to receive it than myself, and if I 
thought this verdict depended upon such, I should 
not consider that it ought to stand, but I conceive 
that it depends in no degree upon it; what has been 
considered as such is not so ; if it were it would be of 
the very worst kind as coming from the plaintiff 
himself, but I attribute to it a different character. 
There is evidence uncontroverted of a subsisting ac- 
9 



66 MICHAELMAS TERM, 4 GEO. IV., 1828. 

count, of a subsisting debt, no less than a letter 
acknowledging it, and an apology for delay of pay- 
ment; this is followed by the evidence of Keliar, that 
about two years ago he heard the defendant ask the 
plaintiff for his account; that plaintiff took him into 
his house and read over his account, to which the 
defendant listened attentively and made no objection, 
nor did it appear that he did make any afterwards, 
until the action was brought. I do not consider that 
silence is always a mark of consent, but I think that 
in this case, under these circumstances, it was. 

The more objectionable part of the evidence is that 
which connects this account with the bill of particu- 
lars; the witness is asked if it is the same as the 
account in the plaintiff 's book ; he says he has no 
doubt but it is, and his ground of belief isj among 
other grounds, that the plaintiff told him so, and that 
he believes him to be an honest man; this, which has 
been called hearsay, I consider no more than a persou 
accounting for his ground of belief, he was so con- 
vinced from the plaintiff's character that the account 
was the same with that read to the defendant, that 
he did not hesitate to give it as his belief upon oath; 
there was also an item for two pounds which he iden- 
tified as being in the account read over to the defen" 
dant, as well as in that produced in court. This 
evidence was left to the jury, and I consider that 
justice has been done between the parties. 

Chief Justice, — In this case there was full evi- 
dence of transactions between the parties ; upon 
application for payment, apologies were maide for 
delay, the defendant went into plaintiff's house and 



Mi(i!H4?I.M4a TEBMi, 4 QUO. JV- 1823. 67 

heard the account read over, and I think his silence, 
in sonie sort, admitted the acceunt; ^ long time after- 
wards the action is brought, and the same witness in 
whose presence the account was read, copies an ac- 
count out of the plaintiff's book, which he verily 
believes to be the satoe. I think, under all the cir- 
cumstances, that the evidence was fairly left to the 
jury, and as the judge who tried the cause is satisfied, 
I am of opinion that the verdict should stand. 

Per Curiam. — Rule discharged. 



GENERAL RULES PUBLISHED THIS TERM. 
Many of the. rules of this court, having become unneces- 
sary in consequence of legislative provisions, and 
others inconvenient, the following are 'published as 
standing orders of this court, all others bei?ig 
rescinded: 

1st. In future the practice of this court, as well as 
the quantum of costs to be allowed in all proceedings, 
are to be governed (where not otherwise provided 
for) by the established practice of the Court of King's 
Bench in England. 

2nd. When the attorney in any cause depending 
in this court, resides without the district where the 
action is brought, all notices, demands, and other 
papers and pleadings, to be served on such attorney, 
shall be deemed regular by being put up in the 
Crown office, in the district, wherein such action is 
brought, unless such attorney have a known agent 
within 'the said district, in which ,c^se, service on the 
a;gent shall be required. 



68 MICHAELMAS TERM, 4 GEO. IV., 1823. 

3rd. As soon as may be after filing any inquisition 
taken under authority of the statute, passed in the 
fifty-fourth year of G-eorge III., the clerk of the 
Crown shall cause an extract therefrom containing 
the name of the person found to be an alien, and de- 
scribing the land found to have been in his posses- 
sion, or to which he had a title subject to forfeiture, 
in order that any person having claim may traverse 
the said inquisition, and he shall expose such extract 
in his office from the date thereof to the end of the 
year from the date of the inquisition. 

4th. Some person competent to the duties of the 
office of the clerk of the Crown and Pleas, is to attend 
there in vacation, from nine in the morning until 
three in the afternoon, and in term from nine till 
three, and from six to eight in the evening. 

5th. Neither the clerk of the Crown and Pleas, or 
any of his deputies are to file any affidavit, declara- 
tion, plea, roll, record, or other paper or proceeding 
in any cause, which shall be printed in part, or in 
the whole, except the ordinary writs and process of 
the court. 

6th. All rules, which by the English practice may 
be had as a matter of course upon signature of coun- 
sel at side bar, or are given by the master clerk of 
the papers, or clerk of the rules in England, are to 
be given by the clerk of the Crown and Pleas, or his 
deputies in this province, in the same manner, and 
the same may issue either in term or vacation. 

7th. No judgment is to be entered up on any war- 
rant of attorney to confess judgment, or upon any 



MICHAELMAS TERM, 4 GEO. IV., 1823. 69 

cognovit actionem, unless the same has been obtained 
through the intervention of some practising attorney, 
whose name shall be endorsed on the warrant or cog- 
novit at the time of taking thereof, and such endorse- 
ment stated in the affidavit of the execution of such 
warrant or cognovit to have been made thereon, at 
the time of taking thereof. 

8th. No less than eight days inclusive shall inter- 
vene between the teste and return of all mesne pro- 
cess hereafter to be sued out in any personal action, 
to be henceforth instituted in this court. 

9 th. The sheriff to whom any execution, or process 
in the nature of an execution, shall be directed, shall 
include in the returns of such execution or process, the 
amount of his fees levied by virtue thereof, and shall 
specify in the margin the particular items of the same. 

10th. In all causes pending, or hereafter to be 
brought in this court, defendants shall plead within 
eight days after common bail and declaration shall 
have been filed and the plea demanded. 

11th. Every attorney not resident in the Home 
District, shall enter in alphabetical order, in a book 
to be kept for that purpose by the clerk of the Crown, 
his name and place of abode, and also in an opposite 
column, the name of some practising attorney, resi- 
dent in the town of York, as his agent, who may be 
served with notices, summonses, and all other papers 
(not required to be personal); and if any attorney 
shall neglect so to enter his name, with that of his 
agent as before mentioned, fixing up the notice, sum- 
mons, or other paper in the Crown office, shall be 
deemed good service. 



[70} 
HILARY TERM, 4 & 6 GEO. IT., 1824. 



Present: 

TMB HoNOtTEABLB ChIIP JuSTICB PoWELL. 

Mr. Justice Boulton. 
Mr. Justice Campbell. 



The King v. McKenzie and MoIntyeb, Esquires. 

Where defendants had been brought into court upon an attachment, although 
they cleared themselves upon interrogatories of the imputed contempt, the 
court refused to allow costs against the prosecutor, although he had 
omitted a fact in his affidavit wliioh might have affected their decision 
upon the granting the attachment, and although one of the affidavits upon 
which the attachment was moved for, was not filed early enough for them 
to answer it by a counter affidavit. 

Robinson, Attorney-Greneral, stated that these 
magistrates were in court in the custody of the sheriff 
of the -— — — district under an attachment issued 
against them in Trinity Term last for a supposed con- 
tempt committed by them, as commissioners of the 
Court of Requests. That one of the affidavits upon 
which the attachment was grounded was only sworn 
in July, and was produced in court for the first time 
on the day upon which the attachment was awarded, 
by which means they had no opportunity of procur- 
ing a counter afiftdavit ; that the court had probably 
proceeded, in a gteat measure, upon this affidavit, 
ahd that if the defendants had had an opportunity of 
answering it, the court would not have granted the 
attachment. That if any objection should be made 
by the counsel for the prosecution, that the appMca- 
titun which he was about to make for the discharge 
df the attachment, was too late, he contended that if 



HILABT TERM, 4 & 5 GEO. IV., 1824. 71 

the court skould consider that it ought not to have 
issued, they would not permit such an objection to 
militate against justice. 

That the court upon being more fully acquainted 
with the circumstances of this case, would discharge 
the attachment, (and that with coats,) as having issued 
upon an afl&davit, which the parties accused had no 
opportunity of answering. 

Boulton, SoI^citor-G-eneral. — The counsel seems to 
think, that McK.'s was the sole affidavit upon which 
the attachment was granted ; in that supposition he 
is mistaken ; the matter was argued for two or three 
terms, and there is no pretence for surprise ; all the 
affidavits were read, and now, a second term after 
the attachment has issued, it is moved to discharge 
it with costs, the application is too late, and, at any 
rate, it should be made for a supersedeas. 

Mackenzie, the magistrate who kept the records, 
refiised the prosecutor a copy of the judgment which 
had been pronounced against him, which is a strong 
feet; his name was signed to the copy after he gave 
it, and it appeared upon affidavit that he was inter^ 
ested in the cause. [Chief Justice. — The impres- 
sion of the court was, that if there had liot been 
actual corruption, there had been a gross misprison.] 
They have had every opportunity of answering the 
matters alleged against them, but in this stage of the 
proceedings, affidavits will not do: the proper course 
is for them to answer to interrogatories. The con- 
duct of these magistrates has been incorrect, and if 
the prosecutor has been injured by their proceedings, 



72 HILARY TEEM, 4 & 5 GEO. IV., 1824. 

whether arising from their ignorance or error, there 
can be no pretence to saddle him with costs. As to 
the contempt, they must purge themselves of it (if 
they can) by interrogatories before the master. 

Attorney-General— ThesQ magistrates would give 
the public a very unfavourable opinion of their con- 
duct if they should consent to pay costs; if this at- 
tachment has been issued erroneously can they be 
decently called upon so to do ? To pay them with- 
out a struggle would admit every imputation which 
has been cast upon them. [Chief Justice. — It 
appeared that one of the gentlemen felt an impro- 
priety in presiding at the cause, which has been the 
origin of these proceedings, and withdrew from the 
bench. And had not Mackenzie and the others bound 
themselves to pay a certain annual sum?] They 
were not bound to stand between the clergyman and 
the subscribers. [Chief Justice. — It appears to me 
that a wild party spirit is the origin of this affair.] 

Per Curiam. — Let the ordinary rule issue to ad- 
minister interrogatories in four days, and let the 
defendants, in the meantime, enter into recogni- 
zances. 



The King v. McKenzie and McInttkb, Esqrs. 

The master having reported to the court, that the 
defendants had by their answers to the interrogato- 
ries, filed by the prosecutor, purged themselves of the 
imputed contempt, the court were proceeding to order 
their discharge, when, 



HILABY TERM, 4 & 5 GEO. IV., 1824. 73 

BouUon, Solicitor-General, objected, that the ans- 
wer to the interrogatories, not having been commu- 
nicated to the counsel for the prosecution, the dis- 
charge would be premature, the court thereupon 
deferred the order until a future day, Mr. Justice 
Campbell observing, "the question as to contempt 
being first decided, that as to costs will become a 
subsequent consideration." 



The King- v. McKbnzib and McIntyrb, Esqrs. 

The defendants being again in court, the Chief 
Justice observed, that they having purged them- 
selves of the imputed contempt the coiirt would dis- 
charge them upon the application being made, which 
he found, upon looking into the anthorities, it was 
usual to make in these cases. 

RoUnson, Attorney-G-eneral. — These magistrates 
are not only entitled to their discharge, but being 
fully acquitted as they have been of the accusation 
upon which they were brought here, they are also 
entitled to be indemnified for their expenses. This 
evidently appears from the case in 3 Burrow of The 
King V. Plunket. {a) In that case the court were 
induced to order costs to the party accused because 
the prosecutor knew that he was not guilty of the 
alleged contempt; these gentlemen are in the same 
situation: their prosecutor had not tbe slightest pre- 
tence for this accusation. 

It originates in a trifling suit in the court of re- 
quests, wherein he chose to let judgment go by 

(a) 8 Burr. 1329. 

10 



74 HILAKT TERM, 4 & 5 GEO. IV., 1824. 

default; in his affidavit facts are stated, which are 
wholly false, and of the falsity of which he might 
easily have satisfied himself; he might have known 
whether they were committee men or not, and that, 
as elders, they had nothing to do with the manage- 
ment of the temporal concerns of the church: it is 
true, when this cause was called on, Mr. Mclntyre 
said, that he, as being an elder, would have nothing 
to do with it, and desired those present to take no- 
tice that he gave no judgment; all these facts the 
prosecutor might have known, and if he did not 
choose to make a defence, he acknowledged the jus- 
tice of the judgment. What has happened in conse- 
quence of this wilful ignorance ? These magistrates 
are dragged three hundred miles without the slightest 
ground, and that there was no such~ ground, the pro- 
secutor must have known. 

It is the duty of this court to protect magistrates, 
even had they (which I do not admit) committed an 
error in judgment, and particularly so in this so penal 
a mode of procedure. Where an information is filed 
against them they are tried by a jury of the country, 
and are much protected by the laws. Supposing 
even what has been stated against these magistrates 
to be true, and that they have been mistaken from 
beginning to end, shall a prosecutor be allowed with 
impunity to drag them three hundred miles for giv- 
ing judgment by default in a one pound cause, which 
he as defendant did not think proper to attend? 
There are two substantial reasons for giving costs, 
namely, to protect magistrates where there is no 
proof of intentional misconduct, and to discourage 
vexatious attacks upon them, and upon this principle 



HILARY TERM, 4 & 5 GEO. IV., 1824. 75 

in the case of The King v. Young and Pitts, (a) and 
The King v. Cox (b) in Burrow, informations were 
discharged with costs. If the country supposed that 
magistrates could be harressed in this manner by 
payment of heavy costs, it would be impossible to 
find persons of respectability to undertake their 
duties. 

Boulion, Solicitor-G-eneral, contra. — No person can 
feel more strongly than I do the propriety of protect- 
ing magistrates; but when you look at this case, it is 
impossible to consider that these gentlemen have 
acted properly, nor does it at all appear that the 
prosecutor has been actuated by malice. If magis- 
1;rates will go beyond their duty, and proceed in 
cases where they have no jurisdiction, an attachment 
lies against them as laid down in Hawkins, and, 
though looking at the situation of this country, if 
magistrates are not fairly protected, respectable per- 
sons could not be procured to fill the office ; yet, on 
the other hand, how many poor persons may be day 
after day harrassed by their oppression if they are 
so ignorant as to exercise jurisdiction in cases where 
they have no pretence to do it as too often happens ? 
In the case before the court there is great doubt 
whether they were not interested ; a clergyman was 
called from Scotland at a stipend of £200, and the 
names of both these magistrates were appended to 
the instrument, and although their names are signed 
as elders only, as approving it, yet any common per- 
son reading it would suppose they were much more 
bound to see the promises contained in it complied 
with, than Wood, a common subscriber, was. I do 

(a) 1 Burr. 656. (5) 2 Burr. 787. 



76 HILAEY TERM, 4 & 5 GEO. IV., 1824. 

not gay that they considered themselves as so bound, 
nor that they were actually so, but I do think that it 
might be a fair ground of litigation; the words are 
" We concur and approve of the above;" and if per- 
sons of information can hesitate as to the effect of this 
subscription, how natural is it for ignorant persons, 
such as the prosecutor, to consider that they were 
actually bound ? The subscription paper, which is 
dated in 1815, is bottomed upon matter which could 
only be the ground of a special action, even if it had 
been brought a week after it had been signed, and 
mofe especially at this distance of time, only one ac- 
tion could be bi-ought upon this instrument, the par- 
ties could not be harrassed by several actions. 
[Chief Justice. — "We ai'e not trying ignorance in 
law.] These magistrates have acted very errone- 
ously and that knowingly. By the process of attach- 
ment alone. Wood could have restitution, (the court 
being competent to make that the condition of dis- 
charging it, that is upon restoring to the presectitor 
what he has lost by the execution being so impro- 
perly issued against him. and paying hiis costs,) an 
indictment or information would have been of no use 
to hinl; if he has been ill treated, he is not to be sad- 
dled with costs. No person can say he has com- 
menced this prosecution without grounds. These 
magistrates have subscribed a paper promising a 
minister a salary of £200 a year, which sum was to 
be made up by the subscriptions of "Wood and others. 
It was very reasonable to suppose they had guaran* 
teed this subscription, ^nd if they had produced it as 
they ought to have done upon the several motions 
which have taken place, the court might have formed 
that opinion as to the defendants being bound as 



fifLARY TERM, 4 & 5 GEO. IV., 1824. 77 

gterahtees oir otiierwise, which might have affected 
their decision; as to issuing the attachment, their not 
having done so is their own fault, and they milst take 
the consequences; however, at all events, the essence 
of the accusation against th6ta is made Out, namely, 
sitting in a case where they were implicated; one of 
them, Mclntyre, has sworn that he gave no judgment 
in the cause, but how was Wood to know that ? He 
Gotild only- form his opinion by the copy of the judg- 
ment, and can 'Hr. Mclntyre after it has been certi- 
fied, and after all these proceedings had upon it, come 
in and say that he was no party to it, and shall these 
tiiagistrates call upon the prosecutor to pay costs in 
consequence of their OWn errors ? The learned coun- 
sel says tiiat Wood's conduct has been wilful against 
thesis gentlemen ; but it clearly appears from the 
whole proceediilgs that he had good reason to suppose 
he was acting rightly, f Cbibf JCtsticb.— In the case 
of the King v. PlUnket, which is, I believe, the only 
Case where costs have beeU given against a prosecu- 
tor alter an attachmient haS issued, the truth Was, that 
in takiUg the answers to thfe interrogatories it was 
found that nothing had been sworn by the prosecutor 
in his affidavit which was not true, although the accu- 
sation against the defendant was unfair and unwar- 
ranted, and the court dismissed the attachmeUt with 
(Josts against the prosecutor, because he could not be 
piinished in any Other way ; but in the case before 
Us, if costs should be given against the prosecutor, 
what is to prevent his being punished a second time 
by indicttoent ?] 

AttWr^y-^tnetid in reply, --- Wood had not a 
shadow of ground to make this complaint, as appears 



78 HILAEY TEEM, 4 & 5 GEO. IV., 1824. 

by the answers to the interrogatories. As to the 
copy of the judgment about which so much has been 
said, Mr. McKenzie gave him a copy of it upon his 
first application, although he refused to give him a 
second after he had moved for an attachment against 
him, until he took advice from his attorney. The 
omission of this fact (so very important a feature in 
the case) in Wood's affidavit, was an imposition upon 
the court, and was a matter which, if it had been fairly 
disclosed, would no doubt have influenced them ma- 
terially. 

Mr. Mclntyre, as an officer of the church, refused 
to give judgment against Wood, but this was no ad- 
mission of interest, in fact neither of the magistrates 
were at all liable, except as individual subscribers, 
a fact which Wood might have well known if he had 
read the call ; as to the illegality of this transaction 
I will not say that in a court of law their proceed- 
ings and judgment would be considered regular, pro- 
bably the minister should have sued upon this paper; 
but according to the statute (a) which gives them juris- 
diction, courts of request are to proceed according to 
equity and good conscience, in which particulars I 
cannot think these magistrates have failed. Were I 
a magistrate to-morrow it is probable I might in a 
similar case do as they have' done, substituting the 
clergyman perhaps as plaintiff. Wood, at any rate, 
can have no pretence to consider himself as injured 
after putting his name to the subscription paper. As 
to the distinction which has been attempted to be 
made between the two churches of Williamstown and 
Lancaster, it appears that they composed but one 

(o) Provincial 56, 9, 3, c. 6, s. 2. 



HILARY TEEM, 4 & 5 GEO. IV., 1824. 79 

congregation; and whatever difference their being 
committee-men for managing the temporalities of the 
congregation would have made, is of no consequence, 
for neither of these magistrates held that situation, 
and even supposing that an elder was more interested 
than others in the payment of this subscription, yet 
Mclntyre cannot be criminated as having sat in judg- 
ment in Wood's case, merely from the circumstance 
of his name being set to the judgment paper; he gave 
no opinion, and called the persons present to take 
notice, that he had nothing to do with giving the 
judgment ; if there had been an hundred causes tried 
at the court of requests that day, it is most probable 
that the names of all the magistrates would have been 
mentioned, though some of them might not have been 
present at the hearing or decision of half of them ; 
therefore to criminate Mclntyre by McKenzie's copy 
of the judgment, would be the height of injustice : 
McKay's affidavits, which state the facts of these mag- 
istrates having signed the subscription paper, and 
the refusal by one of them of a copy of the judgment, 
(facts which no doubt weighed much with the court,) 
were not filed until the 13th day of July, only five 
days before the pronouncing the judgment for the 
attachment, a space of time within which it was im- 
possible to procure counter affidavits. The prosecu- 
tor has not the least pretence to say he has been 
unjustly dealt with, in a cause which he did not think 
it worth while to attend. 

Chief Justice. — The only question with me is as 
to punishing the supposed perjured person. If we 
should award costs to the magistrates we should be 
in fact prejudging the prosecutor. If, indeed, it 



80 HILARY TERM, 4 & 8 GEO. IV„ 1824. 

clearly appeared that there were no other means of 
punishing him (supposing him to have behaved ill) I 
should think it fair to consider the propriety of giving 
costs to the magistrates. 

The court deferred pronouncing judgment until to- 
morrow. 



The King v. McKinzie and McIntteb, Esqrs. 
The court proceeded to give judgment in this case, 

Campbell, J. — Upon the return of the rule nisi 
obtained against these magistrates, the court were of 
opinion that the affidavits filed on their part, did not 
sufficiently answer those that were filed against them, 
and therefore granted the attachment, upon which 
they are brought up from the extremity of the pro- 
vince, a distance of several hundred miles. 

They have now upon interrogatories fully purged 
themselves of the alleged contempt, and are therefore 
ordered to be discharged; and the question now under 
consideration is, whether or not they are to be allowed 
their costs. 

Upon hearing counsel, and full consideration of all 
the affidavits, we are all of opinion, that there was 
some probable ground for the complaint exhibited 
against them, inasmuch as it appears they interfered 
in some degree as magistrates in a matter, strictly 
considered, in which they should have refrained from 
acting at all ; but we also seem to be all of opinion, 
that in so far as they did act, it was in pursuance of 



HILARY TERM, 4 & 5 GEO. IV., 1824. 81 

what they considered their public duty, and for a 
good and beneficial purpose to the community, and 
that their conduct therein was honest, conscientious 
and candid, and without malice, oppression, revenge, 
or any ill intention whatever, such, at least, is my 
own opinion of their conduct, and therefore upon the 
authority of several cases, particularly that of Palmer 
and Baine, and others (a) I should be disposed to allow 
them costs; but when it is farther considered as now 
appears, that the complainant has practised a decep- 
tion on the court, by withholding the disclosure of a 
material fact within his knowledge, at the time of 
making his affidavit, and also that another material 
affidavit had not been communicated to the magis- 
trates in sufficient time to be answered by them, at 
the time of shewing cause, I have no doubt of their 
being entitled to their costs. 

BouLTOisr, J. — There is not an instance of allowing 
costs after an attachment has issued except the soli- 
tary one of the King v. Plunket, mentioned by the 
counsel for the defendants and the Chief Justice. 

In the case before the court it appears to me that 
the prosecutor has made his charge upon probable 
grounds, and that it is not for the court in this stage 
of the proceedings to conclude that he has sworn 
falsely. To make it reasonable that he should be 
charged with costs, it should appear that he knew he 
was acting wrong, but it appears that he proceeded 
upon an opinion which he had formed, as to the effect 
of the subscription paper or call produced in court ; 
and if he acted fairly, according to the best of his 
opinion, that discharges him from corrupt motives. 

(a) 2 Burr. 1122. See also, Rex v. Cox, Esq., 2 Burr. 786. 
11 



82 BILAEY TERM, 4 & 5 GEO. IV., 1824. 

My learnea brother has perhaps, in some measure, 
relied upon the cases cited by counsel where costs 
iave been given to magistrates in cases of informa- 
tions, but these differ both in law and practice from 
that of a party being brought up upon attachment. 
Probably there is no blame to be attached to Wood. 

Whether he has sworn the truth or not in his affi- 
davit, is not for us to determine, it would be to say 
whether he was foresworn or not. 

Many persons looking at these papers would form 
the same opinion upon them which he appears tto 
have done. If, indeed, he had stated in his affidavit 
some facts which he has omitted, it might have had 
some effect upon the opinion of the court when the 
attachment was granted, but these affidavits are com- 
monly drawn up by the attorney, who does not usually 
insert any thing which may make against his client ; 
"I "however think that there was a sufficient propor- 
tion of facts set forth to lead the court to their d-eci- 
sion, and, as it is altogether without precedent, I am 
of opinion that costs should not be given to the defen- 
dants. 

Chief Justice. — The decision of the court in 
awarding the attachment, was founded upon the affi- 
davits of the prosecutor, and the facts stated in those 
affidavits have now been answered by the oaths of 
the adverse party, the court contents itself by the 
prosecutor's affidavits being contradicted by positive 
testimony to the contrary, by the parties accused 
swearing that they are not guilty. Where ther^ is 
oath against oath, there must be perjury some where, 



HILARY TERM, 4 & 5 GEO. IV., 1824. 83 

but it is not tke practice oi the court by its determi- 
natioQ to say wkere it lies, wMcli it wouild in effect 
do if it gave costs to the defendant*. 

In the singular instance before referred to (a) of 
costs being allowed to a defendant brought in upon 
attachment, the affidavit of the prosecutor was not 
controverted ; the accused was unable to swear that 
the facts were not true, but it appeared by the answer 
to the interrogatories that there had been a practice 
upon the court of a concealment, which, if disclosed, 
must necessarily have altered their decision upon the 
motion for the attachment; upon this ground and 
from the great injustice evinced by the prosecutor in 
that case, the court gave costs to the defendant, but 
i-n the case before this court there is oath against 
oath. I cannot undertake to determine the question 
of perjury between the parties, nor do I consider it 
my duty to prejudge it. I am therefore of opinion 
that the court should not give costs to these defendants. 

Per Curiam. — Let the defendants be discharged. 



LOSSING V. HOKNBD. 

This was an action upon bond conditioned for the 
performance of an award. Baldwin moved for a rule 
to shew cause why the venue should not be changed 
from the Home District to the District of London, 
upon an affidavit stating, "that the plaintiff's cause 
of action (if any) arose in the said District of London, 
and not in the Home District or elsewhere, and that 
all the material witnesses of the defendant were resi- 
dent in said District of London." 

(o) King T. Plunket. * 



84 HILARY TERM, 4 & 5 GEO. IV., 1824. 

Macauhy, contra.— This venue cannot be changed 
without special grounds, it is laid down in Tidd and 
all the authorities, that in actions of debt upon bond 
or other specialty the court will not without such 
special grounds change the venue. In this case the 
only issue must be non est factum or performance. 

Per Curiam. — Application refused. 



Crawfoed v. Eitohie. 

Macaulay moved to set aside the proceedings in 
this case for irregularity, the writ having been issued 
in the deputy clerk of the Crown's office, in the Dis- 
trict of Grore, and the venue being laid in the Home 
District. He contended that the statute allowing 
proceedings to be instituted and carried on in the 
outer districts, was always understood to be confined 
to cases where the venue was laid in those districts. 
That a judge of assize of the Home District, would 
not recognise the signature of the deputy clerk of the 
Crown of an outer district to the nisi prius record. 

Per Curiam. — The plaintiff may have leave to 
amend upon payment of costs. 



Haslbton v. BrUjSTDICJE. 

Where the defendant, one of the sheriff's bail, had from misapprehension 
given the plaintiff in the original action a cognovit, and had moved for 
and obtained an order to stay proceedings upon it until the action against 
the principal could be tried, -which order was conditional upon payment 
of " all costs incurred by proceedings against the sheriff's bail," the 
court determined that the costs of the proceedings upon the cognovit 
should be considered as such costs. 

An application had been made in a former term in 
the case of Hasleton v. Eoberts, to stay proceedings 



HILAKY TERM, 4 & 5 GEO. IV., 1824. 85 

upon a cognovit given by Brundige, the present de- 
fendant, who had become Robert's bail to the sheriff. 
It had been given under an apprehension that 
Eoberts, who had left the province, would not return 
to defend the action ; it was given in the name of 
Brundige, the defendant, without any reference in it 
to his situation as bail ; an execution had been issued 
against the present defendant, according to the terms 
of the cognovit, but the court, upon an affidavit that 
there were merits in the suit against Roberts, had 
stayed the execution until a trial might be had in the 
original action. The terms of the rule were, "that 
all costs incurred by proceedings against the sheriff's 
bail should be paid, leaving the judgment by confes- 
sion as a security." 

The costs of entering up judgment and issuing 
execution upon the cognovit, not having been paid, 
Macaulay had last Michaelmas Term obtained a rule 
to shew cause why the plaintiff should not issue exe- 
cution against Brundige, the present defendant, for 
the amount of the sum secured by 'the cognovit and 
costs, and now, 

Washburn shewed cause. — He contended, that as 
the rule only required the costs to be paid upon any 
proceedings that had taken place upon the bail bond, 
(but which remained still in the sheriff's office unas- 
signed,) the defendant was not by the terms of the 
rule called upon to pay any costs, as none had been 
incurred. That although it might have been the in- 
tention of the court, that the costs upon the cognovit 
should have been paid, yet, that as the defendant had 
omitted to do so under a misapprehension, the court 



86 HILARY TERM, 4 & 5 GEO. IV., 1824. 

would again stay the execution against Brundige, the 
defendant, upon these costs of the cognovit being now 



Mac(mh,y; contra.— Contended that the defendant 
in this action, by the former application to stay the 
proceedings upon this cognovit, had himself con- 
sidered the proceedings upon it as proceedings 
against bail, and that it was upon that principle that 
he obtained the relief granted by the court, and that 
he could not after his own neglect by non-payment of 
these costs, come forward and say that they were 
not piroceedings against the bail ; that it was his duty 
to have got these costs taxed and paid them, that it 
was a condition precedent to going to trial in the 
original action, and that it was now too late for this 
application. 

Chief Justice. — The former application mrade to 
this court for staying the proceedings and allowing 
the merits to be tried, was made in favour of Brun- 
dige quoad a bail, and as such entitled to the equita- 
ble relief which the court is empowered to give under 
the statute, — the plain intention of the rule was, that 
he should pay the costs of the proceedings upon the 
cognovit, which security was contended by his coun- 
sel to be within the equity of the statute. 

Fer CMnam.— Rule made absolute. 



HILAEY TEEM, 4 & 5 GEO. IV., 1824. 87 

MoDouGALL V. Camp. 

Where the plaintiff's attarney had attended a m^etij^g of arbitrators and 
they had made their award, the court refused to set aside the same upon 
the ground that the plaintiff had not attended to give his'evidence agreea- 
ble to the provision in the rule of reference, from the miscarriage of a 
notice sent to him by his attorney for that purpose, and although the de- 
cision of the arbitrators proceeded principally upon the evidence of the 
defendant. 

Macaulay moved for a rule nisi to set aside the 
award, on the ground that the arbitrators who had 
been appointed by a rule of reference made at nisi 
prius, had not full evidence upon the subject matter 
submitted to them, the plaintiff not knowing of or 
being able to attend the said arbitration. 

The rule of reference upon which the award was 
made, ordered " that the parties and their respective 
witnesses might be examined before the arbitrators." 

The affidavit upon which the motion was grounded, 
stated the plaintiff's residence at York — the arbitra- 
tion taking place at Niagara — ^the non-receipt of a 
letter which had been sent to apprise him of the time 
and place of meeting, and that the award principally 
proceeded upon the affidavit of the defendant, which 
the plaintiff, if present, could have rebutted. 

Boulton, Solicitor-G-eneral, contra. — Contended, 
that as the attorney for the plaintiff attended the 
arbitration; as the same had been postponed in con- 
sequence of the absence of a witness on the part of 
the plaintiff, who afterwards attended and was ex- 
amined, and the arbitration gone into in the attor- 
ney's presence, the award could not' be set aside. 
That it was a pure case of negligence on the part of 
the plaintiff, or his attorney, in which the court would 
not interfere. That the application was analogous to 



88 HILARY TEEM, 4 & 5 GEO. IV., 1824. 

that for a new trial, which was never granted in con- 
sequence of a party's neglect to produce his witnesses. 

Per Curiam. — Eule refused. 



MoGriLL V. McKay. 

Semble, that where a plaintiff has taken a fieri facias against lands and 
tenements belonging to a defendant in several districts, the court would 
interfere to prevent more of those lands being sold than would satisfy the 
plaintiff's demand. 

Dixon moved for a rule upon the sheriffs of several 
districts to suspend the sale of the lands of the defen- 
dant, taken by them in execution at the suit of the 
plaintiff in this action, until it could be ascertained 
whether the proceeds of the sale of the lands in one 
district would not be sufiBcient to satisfy the plain- 
tiff's debt. 

The court inclined to grant a rule nisi, but Dixon 
withdrew his application upon the counsel for the 
plaintiff {Macaula-y) undertaking that the sales should 
take place in succession. 



Scott v. McGI-ebgoii. 

There is no occasion for the seal of the court to be affixed to a record of nisi 
prius in an outer district where the suit has been instituted and cause 
tried there. 

This was a case of demurrer in which judgment 
was given for the plaintiff. In the course of the 
argument the defendant's counsel had objected to the 
want of a seal to the nisi prius record. It was asserted 
by the plaintiff's counsel, 

BouUon, Solicitor-General, and assented to by the 
court, that there was no necessity for a seal to be 



HILARY TERM, 4 & 5 GEO. IV., 1824. 89 

affixed thereto in the outer districts, as there would 
be but one seal of the court, which remained in York 
at the principal office, and consequently as the deputy- 
clerk of the Crown, in each district, was authorised to 
issue the writ or record of nisi prim, his signature 
alone must be sufficient. The counsel referred to a 
former case of Lancaster v. Curtis, where this point 
had been determined. 



Davy v. Myers, (Executors op). 

Where the plaintiff had recovered a verdict against executors for a breach 
of promise of marriage made by their testator, this court would not (on 
the ground that such an action could not lie against personal representa- 
tives) arrest the judgment. 

This was an action brought against the defendants 

as executors of Myers for a breach of a promise 

of marriage, and upon which the plaintiff had ob- 
tained a verdict against them for five hundred 
pounds. The cause Was tried before the Chief 
Justice. 

Robinson, Attorney-General, had, in a former part 
of the term, obtained a rule to shew cause why the 
judgment should not be arrested upon the ground 
that this action did not survive against executors, 
and now Boulton, Solicitor-G-eneral, shewed cause. 

This is an action of assumpsit brought by the plain- 
tiff, Miss Davy, against the executors of William 
Myers, for a breach of promise of marriage in the 
life time of the defendant's testator, and a verdict 
having been found for the plaintiff, a motion is made 
in arrest of judgment, upon the ground that no such 
action can be maintained against executors. The 
12 



90 HILARY TERM, 4 & 5 GEO. IV., 1824. 

Attorney-General contends that this is a personal 
action, and therefore dies with the person. 

That it is an action of the first impression, and that 
no precedent can be found of such a one having been 
maintained. 

That as the personal estate of the testator gained 
nothing by the contract, (so far as appears by the 
record,) the executors cannot be called upon to pay 
any damages for a breach of it. 

That the damages being in pcenam, and therefore 
for a quasi tort, cannot be recovered against an exe- 
cutor, and finally he argues ab inconvenienti, that it 
would be impolitic to sustain such an action, because 
there must have been many circumstances in the 
knowledge of the testator from the nature of the cause 
of action which might materially lessen daraages, 
which the executors can know nothing of. 

With regard to the first objection, the rule " actio 
persomUs moritur cum persona," so far from being 
universal, is not even general, as by far the greater 
nupaber of personal actions survive, and lay as well 
by as against executors. All actions are either real, 
personal or mixed, and as to personal actions it is 
laid dowu in Hambly v. Trott, (a) that where the 
cause of action is for money due or a contract to be 
fulfilled, gain or acquisition, by the labour or pro- 
perty of another, or a promise by the testator, ex- 
press or implied, the action survives against the 
executors, secus if it be tort or arise ex delicto, sup- 

(a) 1st Oowper. 



HILARY TERM, 4 & 5 GEO. IV., 1824. 91 

posed to be by force or against the peace. Here it 
is expressly decided that if the cause of action is a- 
promise to the testator either express or implied, or 
a contract to be fulfilled, the action survives against 
the executor, which is the case here ; the testaitor 
promised and contracted with plaintiff to marry her, 
and broke that promise and contract in his life time, 
as appears by the recoi^d; therefore, this action comes 
within the plain terms of this authority, consequently 
unless the defendants' counsel can shew, that the par- 
ticular species of contract or promise is an exception 
to this rule, the plaintiff is entitled to judgment. 
When a general rule is applied in argument to 
answer an a,dverse proposition, we must look at the 
reason of the rule, because if the reason of the rule 
is not applicable, the rule itself fails. Now the reason 
why some (because we have shewn the rule is not 
general) personal actions, viz., for torts, will not lie 
against executors is this, that the judgment in those 
cases is guilty and quod defendem capiatur, which is 
in the nature of a conviction for a crime, and no man 
can be put to answer criminally for the fault of 
another. This objection arises purely from the form 
of the action. 

The remaining personal actions which will not lie 
against executors, are actions of debt upon simple 
contract, and the reason of the rule as applied to 
these actions, is, that' the testator, if living, could 
wage his law, and as the executors could not do so 
for him, compelling the executors to answer would 
deprive them of a mode of defence which the common 
law gave. 

Th^se observations apply when' th6 action is 



92 HILARY TERM, 4 & 5 GEO. IV., 1824. 

brought against an executor, but when the action is 
by an executor, the reason of the rule is quite dif- 
ferent. 

The reason why an action for a tort or for any 
other cause, in which the damages to be recovered 
are in pamm and for an injury to the person, cha- 
racter, feelings, &c., of the plaintiff's testator, will not. 
lie, is, that the executor is the representative of the 
personal estate and not of the person or personal 
wrongs of the testator. — Williamson v. Chamberlayne. 

This latter case was for a breach of promise of 
marriage by the defendant to plaintiff's testator, and 
the reason given by Lord Ellenhorough why the ac- 
tion could not be supported, was, " that the plaintiffs 
were not the representatives of those injuries, a com- 
pensation for which was sought to be recovered; that 
they were the representatives of the personal estate 
of the testatrix and not of her person or personal 
wrongs, from whence it appears that the reason of 
the rule ' actio personalis moritur cum persona,' is 
different as applied to actions brought by and against 
executors, in the first case being for want of repre- 
sentation, and in the last on account of the judgment 
being guilty, or that defendants are deprived of their 
wager of law." 

« 

Secondly. — An action being of the first impression 
is no objection, it is only a reason (if true) why can- 
tion should be used to see that it comes within the 
general principle by which it is endeavoured to be 
supported ; but it is highly probable that the reason 
why the Attorney-G-eneral can find no case of this 



HILARY TERM, 4 & 6 GEO. IV., 1824. 93 

kind reported in the books is, because it was never 
before questioned. 

The third objection is, that the testator's personal 
estate gained nothing by the contract, this is the case 
in many actions which were never questioned, and 
notoriously do lie against executors, such for instance 
as actions of covenant, for title, and for further assur- 
ance entered into by testator, {a) 

It has also been urged that an action will not lie 
against an executor for the non-performance by the 
testator of a personal act, which the executor cannot 
perform in his stead ; and my learned friend taunt- 
ingly says, which of the executors would you have 
marry this good woman ? In this remark there is 
more wit than argument; for there are many actions 
in which the contracting party (much less his repre- 
sentatives) will not be permitted to perform the act 
contracted to have been done, when a breach has 
ensued. In actions of debt on bond, payment after 
the day named in the condition, could not, at common 
law, have been pleaded in bar of an action for the 
penalty; and in actions on special assumpsits, per- 
formance after a breach will not bar an action lor 
damages arising from that breach ; and in the case 
just cited of King v. Jones and others, the executors 
could not have performed the contract for a breach 
of which the action was brought; and although it has 
been asserted, that no action will lie against execu- 
tors that will not lie for them, the proposition is in- 
correct, for in King v. Jones and others, it was not 
objected that such an action could not be sustained 

(ffl) King T. ^ones «* '''^ 5 Taunt. 418, Burrow, 1199. 



94 HILARY TEEM, 4 & 5 GEO. IV., 1824. 

against the execnior, yet iii a similar case m Maull 
V. Selwyn, brought by an executor, it was decided 
that the action could not be supported. 

BoUnson^ Attorney-General, contra).— This is an 
action brought by the plaintiff against the defendants, 
executors of J. W. Myers, for a breach of promise of 
marriage, alleged to have been made by their testa- 
tor. Except the singularity of its being brought 
against executors, (which seems never to have been 
attempted before,) it is in the ordinary form of such 
actions — there is no special averment or allegation 
of any kind on the record, nothing to distinguish this 
case from any other of breach of promise of marriage, 
in which one of the contracting parties has died, and 
consequently the single question for the court to de- 
termine is, whether in every case an action can be 
sustained against the personal representatives for 
breach of promise of marriage; if it can in this, it can 
in every other, because there is no particular aver- 
ment on the record to support this action, no state- 
ments but those which are ordinary and indispensable 
in all actions of this description. The general prin- 
ciple is therefore alone to be considered. I contend 
tiiat, on general principles, this cause of action does 
not survive but dies with the party; and, on that 
ground, I move in arrest of judgment. 

In the first place I venture to state, that no in- 
stance can be pointed out of any attempt having been 
made before the present, to maintain an action for 
breach of promise of marriage against the executors 
of a contracting party; not a dictum can be found in 
any book, in any treatise on any one branch of the 



HILARY TERM, 4 &' 5 GEO. IV., 1824. 9g 

I^F, to authorise sijch an action ; no report can be 
produced of any decision to support it, none in whicji 
a question or pretence of the Ijind has been discussed; 
ill no book of precedents can any form be found of 
any declaration, pleading or jiidgment, in an action 
of this kind. There being then iio express and par- 
ticular authority or precedent to support it, it remains 
to be enquired, whether, according to general princi- 
ples of law, it can be sustained. 

The maxim every where repeated is " actio per- 
sonalis moritur cum persona;" but, though in very 
ancient times this maxim was construed much more 
strictly than was reasonable, and than the law now 
is, yet, I admit, it was never taken to mean that all 
actions that are technically called personal actions, 
die with the person; for that, as is remarked even in 
the oldest authorities, would exclude the ordinary 
matters of debt and contract. It rather meant that 
actions for personal injuries, or .wrongs for causes 
that affect the person, rather than the property, do 
not survive. A distinction was early taken, that an 
action could not be brought against executors for 
breach of contract, which the executors could not 
perform, or such rather as could only be performed 
by the testator in person. On this principle, the case 
in Levinz was decided ; and though there have been 
coutradictory decisions with respect to that particular 
case, of breach of covenant for not instructing an ap- 
prentice, the latest seems to overrule the contrary 
decision, and to decide that such an action would not 
lie against executors, by reason that it was covenant 
for a personal thing to be performed only by the 
testajtor, and the executors might not be of the trade. 



96 HILARY TERM, 4 & 5 GEO. IV., 1824. 

and therefore not capable of performing it. The 
maxim may in this case have been advanced too far, 
because the executors might cause the apprentice to 
be instructed by one who was competent ; but, as it 
is certain the executors in this case could not be 
compelled to marry the plaintiff, (if indeed they had 
not already* wives of their own,) and as they could 
not easily find her another husband, or compel her 
to accept one of their offering, the principles which 
were applied in the case in Levinz apply with more 
force in this. The old authorities state most compre- 
hensively, what actions in their nature survive, and 
what die with the party ; and no one can read that 
case or any of the early decisions in Dyer, Croke, 
and Levinz, without feeling satisfied from the very 
doubts raised as to other causes of action. That in 
the judgment of the learned men who decided those 
cases, the very idea of attempting such an action as 
this, against the personal representatives, would have 
appeared altogether absurd. In later times the case 
of Hambly v. Trott was decided; and if the case, 
arguments and judgment of the court are read atten- 
tively, (and not in detached sentences to make them 
appear to give countenance to doctrines evidently 
not supported by them,) it will be found to militate 
against rather than to support the present action. 

These, however, are only cases that can supply 
reasons from analogy, not one of them relates ex- 
pressly to this cause of action, nor can any such be 
found, at least none in which the question is raised 
whether such an action can be brought against the 
personal representatives. 

Fortunately, however, there is among the decisions 



HILARY TEEM, 4 & 5 GEO. IV., 1824. 97 

of very modern times, one case that appears com- 
pletely to determine the general principle that it does 
not survive, althodgh that Case is one of an action 
brought by atid not against the personal representa- 
tives. In Chamberlayne v. Williamson, (a) an action 
was brought by administrators for a breach of pro- 
mise of marriage to their intestate. It struck the 
judge who tried it at nisi prius, as an extraordinary 
actioii, but he suffered a vefdict to be taken, and 
saved the point. The Court of King's Bench declared 
that it was the first instance of such an attempt, and, 
though they admitted that was not conclusive, they 
deckred it to be a sti-oug presumption at least against 
the action^ because it proved that the general sense 
of mankind was against it. 

To the same extent only, is the total absence of 
precedent or authority urged in this case. After 
solemn argument and great deliberation as the case 
expresses, the court decided clearly and without a 
doubt against the plaintiffs, and every reason on 
which they decided that executors cannot maintain 
this action, apply a fortiori to prove that it cannot 
be maintained against them. Lord EUenhorough 
says, " it is an action sounding altogether in dama- 
ges,, that it is for an injury — for a wrong to the person ; 
that the damages are vindictive and inposnam." 

Now nothing is more eleair than that actions for 
wrongs, for injuries, do not survive against executors, 
that they are not liable for damages in pcsnam. And 
when it is once admitted that this action is to be so 
regarrded, the reason of " actio personalis moritur cum 

{a) 2 M. & P. 40a, M. S. 

13 



98 HILARY TERM, 4 & 5 GEO. IV., 1824. 

persona," applies beyond a question. There is no 
case in which, by the common law, an action can be 
brought against executors, which cannot be brought 
for them ; and since it has now been decided in the 
only case that appears ever to have occurred, that 
such an action will not survive to the executors, and 
decided on grounds that must apply with equal force, 
and do apply with greater when the parties are 
reversed, it must be taken to be clearly established 
by that decision that this action cannot be sustained. 

There the action was against the original contract- 
ing party, who ought, undoubtedly, to perform all 
his promises, and has the means of making a full de- 
fence; and the only question is, can he be sued upon 
a cause of action so completely personal, the other 
contracting party being dead. 

The court say— generally we think not, the action 
is quasi ex delicto, and does not survive ; but if you 
could prove special damage to the estate, perhaps it 
might. Why ? Because the estate should then be 
made good against this injury to the benefit of credi- 
tors, and others entitled. 

But reverse this— the same objection as to the 
personal nature of the action remains— the liability 
of the executors must turn upon that objection, and 
if they are liable, the estate is subject to be reduced 
to nothing by a vindictive verdict in an action sound- 
ing wholly, as the court say, in poRuam, for loss of 
personal advancement, mortified feelings, and con- 
siderations wholly personal, and out of the limits of 
calculation ; and creditors for bona fide debts would 
thus be left without assets to answer their demands. 



HILARY TEEM, 4 & 5 GEO. IV., 1824. 99 

It is evident too, that in such actions, of all others, 
the executors could not make a proper defence; they 
could not know the objections which may have justi- 
fied the breach, but which honour and delicacy may 
have induced their testator never to reveal. Indeed, 
it is probable were this action sanctioned, that artful 
persons would wait, in some cases, until the death of 
a party put it in their power to proceed against those 
who could make no defence. 

The whole reasoning of the case lately decided 
must apply to this, but not the exception, which, it is 
said, might possibly, in a particular case, sustain the 
action. 

The doubt thete was — the plaintiff does not repre- 
sent the original contracting party as to contracts of 
this nature, but he does represent the estate, and, 
therefore, if it were specially alleged and proved, 
that the estate has been damnified by the breach, 
perhaps he may sustain this action against the origi- 
nal contracting party. 

Here, on the general principles recognised in that 
case, the defendants do not represent the contracting 
party in an action of a nature so purely personal : 
on what particular ground then could it be sustained? 
Not because the plaintiff, one of the original con- 
tracting parties, has been damnified, for that is the 
case in every trespass, in slander, and in all actions 
which it is not pretended can survive. Perhaps the 
corresponding condition might be, if the plaintiff had 
alleged specialty, that gain had accrued to the estate 
of the testator by his non-performance, he might sus^ 



100 HILARY TERM, 4 & 5 GEO. IV., 1824. 

tain this action; but there is no such allegation, nor 
can it be inferred. It might have been far otherwise; 
the testator might have married less advantageously 
and left a widow fully entitled to dower. The record, 
at all events, authorises no inference one way or the 
other, and we can intend nothing to support it. 

That it has never been conceived such an action 
can survive, is clearly seen from the observations of 
the court upon the first and last experiment that has 
ever been made in England; if it had been attempted, 
we must have been able to find some trace or men- 
tion of it. 

The statute of William, which allows plaintiffs to 
proceed by scire facias against executors of a defen- 
dant dying after interlocutory judgment, in all cases 
in which the action could have originally been main- 
tained against executors, would of course apply in 
this cause of action, if it survives as is contended. 
Many instances must have happened in which plain- 
tiffs having proceeded to that stage in such an action, 
have been stopped by the death of the defendant; yet, 
none of them ever appear to have made the attempt 
of reviving it by set. fa. against the executors. No 
case can be found which leads us to think so; no book 
says it can be done; no form is given of the proceed- 
ings that would be required. 

It is evident unless such an action -^ould lie in 
England, it does not lie here; nothing has been or 
can be brought to shew that it has been attempted 
in England; whatever principles and cases bear upon 
the subject are against it; and it appears repugnant 



HILARY TERM, 4 & 5 GEO. IV., 1824. 101 

to reason as well as experience, that it should be 
maintainable. The court will therefore, it is pre- 
sumed, not now sanction so entire an innovation, 
which would lead the way to many similar actions, 
unsupported as they would be by any other prece- 
dent. 

The arguments employed by the learned counsel 
for the defendant, are ingeniously built upon cases 
not bearing on the question. The cases cited by him 
are of actions upon covenants and other specialties, 
(where the question was not and could not be, whether 
the action survived or not, but whether it survived 
against the e?:ecutor or the heir,) against the repre- 
sentative of the real, or the personal estate; a»d if 
the positions which have b^en called from them, are 
tajseji with reference only to the point in the respec^ 
tive cases, however gi^nerally they maybe expressed, 
they will be found not to apply in any degree to the 
question here before the court. 

Qhiep Justice. — This is an action against execu- 
tors for breach of contract by the testator. 

At the trial the contract by the testator to marry 
the plaintiff, and by the plaintiff to marry the testa- 
tor, were proved and admitted. 

TSiat in conformity to the contract they did inter- 
marry, and cohabited as man and wife in the face of 
the world and their families, until the death of the 
testator, who, in consideration of such marriage, left 
by will his wife to her lawful claims on his estate. 

It appeared' in evidence-^ that they were married 



102 HILAEY TEEM, 4 & 5 GEO. IV., 1824. 

by a Lutheran minister, whose authority was supposed 
by the plaintiff to be questionable, but overruled by 
the testator, as being legally authorised to solemnise 
the marriage. 

It was in evidence, that subsequently doubts as 
to the validity of the marriage arising in the mind of 
the testator, he proposed to have the ceremony re- 
newed by Mr. Stuart, the church minister ; that the 
plaintiff declined this offer; and it did not appear, 
that in any other way she had required the testator 
to fulfil his contract, or that he had refused so to do. 

The judge was of opinion, that the action lay for 
damages for breach of the testator's contract, but that 
the breach on his part was evidently the refusal on 
the part of the plaintiff, and that the verdict must be 
for defendant ; but the jury found for plaintiff and 
£500 damages. 

The present motion is in arrest of judgment with- 
out reference to a new trial. It has been fully 
argued, and, although a question which must have 
frequently occurred, it appears doubtful if the action 
lies at all, without an averment of special damage in 
the life of the testator. 

The cases on the survival of actions for and against 
executors, are still confused, and appear to be decided 
rather on particular circumstances, than on general 
principles. 

Supposing in the present case that the plaintiff had 
proved an express demand on her part, and refusal 



HILARY TERM, 4 & 6 GEO. IV., 1824. 103 

of the testator to fulfil their contract, and that the 
testator had then married another woman and died, 
is it contended that the action did not survive to 
plaintiff against the executors for the breg,ch of the 
contract without the averment of special damages, 
which, as against them, would have been one-third 
of the value of the moveables ? 

Then, if it would lie in such case, the proof of the 
facts failing is no ground for arrest of judgment but 
for a new trial. A new trial is never granted after 
failure in arrest of judgment, (unless the case in 
Douglas (a) is to be considered as authority,) and, in 
so just a case as this is, it is fortunate that the ver- 
dict can stand. 

Campbell, J. — This is an action on the case in 
assumpsit brought by the plaintiff, a single woman, 
against the defendants as executors, to recover dama- 
ges for breach of promise of marriage by the testator, 
and in which she has recovered a verdict for a con- 
siderable amount, and now the defendants move in 
arrest of judgment on the following grounds, viz. : 

First. — That such action is not maintainable against 
executors, the cause of action being in the nature of 
a personal tort, within the maxim " actio personalis 
moritur cum persona." 

Secondly. — That the declaration does not state any 
allegation of special damage, and 

Thirdly. — That no precedent being found for such 

(a) Vide Doug. 745. 



104 HILARY TERM, 4 & 5 GEO, IV., 1824. 

actioiij affords a presumption that it cannot be main- 
tained. 

"With respect to the precise application of the 
common law maxim, there has been some difference 
of opinion both before and since the statute de bonis 
asportatis in vita testatorii^ {a) but a variety of mo- 
dern decisions seem to have removed all difficulty on 
that point, and the distinction, as now I think clearly 
established, is, that where the cause of action is a 
mere personal tort, or is founded upolt any malfeas- 
ance or misfeasance, or arises ex delicto, and geder- 
ally where the declaration states the injury in such 
manner, that defendant must necessarily plead not 
guilty, the rule "actio personalis moritur cum per- 
sona," will apply; that rule, however, has never been 
extended to actions founded on nonfeasance or arising 
ex contractu whether special or simple, as debt, cove- 
nant, promise, &c- In such cases the action gener- 
ally survives, and assumpsit or other appropriate 
action will lie against executors or administrators. 
This doctrine is, I think, sufficiently established in a 
variety of cases, of which I need only mention those 
of Hambly v. Trott, Kingdon v. Nottle, Chamber- 
layne v. Williamson,, and the note on Wheatly v. 
Lane in Saunders ; if therefore the decision of the 
present question depended on the general principle 
stated as the first ground of this motion, I should 
have no hesitation in saying, that the rule nisi ought 
to be discharged;, but the same authorities and several 
others recognise, I think, with equal certainty a dis- 
tinction which I apprehend must have an important 
bearing on the second ground of thie miotion, viz.: the 

{a) 4, Ed. III., c. 7. ~~~ 



HILARY TERM, 4 & 5 GEO. IV., 1824. 105 

want of any allegation of special damage on the re- 
cord. In the case of Hambly v. Trott already cited, 
Mr. Buller, in shewing cause against a motion similar 
to the present, observes, that actions to recover 
specific property, or the value thereof, will lie against 
executors or administrators; but where the damages 
are in their nature vindictive, or in pcsnam, or un- 
certain, no action will lie against such representa- 
tives. I would not cite the opinion of counsel, how- 
ever eminent, were it not recognised and confirmed 
by judicial authority. Lord Mansfield, in delivering 
the unanimous opinion of the court in that case, cites 
and adopts the doctrine laid down by Mr. Justice 
Manwood in Sir Henry Sherrington's case, as re- 
ported by Sir T. Eaymond, "that in every case 
where any price or value is set upon the thing in 
which the offence is committed, if the offender dies, 
his executor shall be chargeable; but where the ac- 
tion is for damages only in satisfaction for the injury 
done, the executor shall not be liable." This his 
lordship calls a fundamental distinction, and is, I 
imagine, the same distinction to which Mr. Justice 
Bayley alludes by what he terms a pre-existing 
proveable debt, in contradistinction to vindictive or 
uncertain demands of damages, for injury to the per- 
son, or personal feelings, or at most to the personal 
comfort, unaccompanied by any specific pecuniary 
loss, and therefore inadmissible against the represen- 
tatives of a person deceased, or against the assignees 
of a bankrupt, as being incapable of any other mode 
or means of estimation than the capricious or acci- 
dental feelings and discretion of a jury. But a special 
damage alleged on the record, such as loss of mar- 
riage to another person, the relinquishment or loss 
14 



106 HIMBY TERM, 4 & 5 GEO. IV., 1824. 

of certain pecuniary advantages, or the giving up a 
profitable trade or employment, in consequence of 
the promise of marriage, are in the nature of pre- 
existing proveable debts, as being as capable of spe- 
cific proof, and precise estimation, as any other debt, 
and in which the jury in estimating the amount of 
damage, must be governed entirely by the evidence 
in support of such special allegation of loss. 

In the case of Ohamberlayne v. Williamson it was 
expressly decided, that administrators cannot have 
actions for breach of promise of marriage made to 
intestate, without an allegation of special damage. 
But it is contended that that decision does not apply 
to the present case, that being an action by the per- 
sonal representatives, and this against such represen- 
tatives — I cannot see the distinction. The doctrine 
there laid down appears to me to be general. 

Lord Elknboroiigh, in giving the unanimous opinion 
of the court, expresses himself to this effect: the gen- 
eral rule of law is actio personalis moritur cum per- 
sona, under which rule are included all actions merely 
personal. Executors and administrators are the re- 
presentatives of the personal property of the deceased, 
but not of his wrongs, except where those wrongs 
operate to the temporal injury of the personal estate, 
but in that case the special damage ought to be stated 
on the record, otherwise the court will not intend it. 
Where damage can be stated on the record, that in- 
volves a different question. Although marriage may 
be regarded as a temporal advantage to the party, 
as far as respects personal comfort, still it cannot be 
considered as an increase of the transmissible per- 



HILARY TERM, 4 & 5 GEO. IV., 1824. 107 

sonal estate. Loss of marriage may, under circum- 
stances, occasion a strict pecuniary loss to a woman, 
but it does not necessarily do so, aiid unless it be 
expressly stated on the record by allegation, the 
court cannot intend it; and his lordship concludes his 
remarks by saying, "on the ground therefore that 
the present allegation imports only a personal injury, 
to which the administrator is not by law, nor is he 
in fact, shewn to be privy, the action cannot be main- 
tained." All this perfectly agrees with the principles 
laid down in the other authorities. Were it other- 
wise, the parties to a suit like the present could not 
be upon equal footing with respect to the prosecution 
and defence of the suit, as in the present case the 
executors may not have had the same advantage of 
pleading specially to the action, as the testator would 
have had, if the action had been brought in his life 
time, such as that ho was always ready and was then 
ready and willing to perform his promise, but was 
prevented by the plaintiff, &c. For aught that ap- 
pears on this record, it may have been the case that 
testator really was willing and desirous to perform 
his promise, but that plaintiff on her part delayed or 
declined performance, or relinquished her claim by 
consenting to cohabit with him unmarried, to the time 
of his death, in which case her right of action would 
have been destroyed, not by his default, but by the 
act of Grod. I am of opinion that without an allega- 
tion of special damage this action is not maintainable 
against executors, and I consider the third ground of 
the present motion as strongly corroborative of this 
opinion, and therefore that judgment ought to be 
arrested. 

BouLTON, J. — This is a motion in arrest of judg- 



108 HILARY TERM, 4 & 5 GEO. IV., 1824. 

ment in an action brought by the plaintiff for a breach 
of promise of marriage made to the plaintiff, by de- 
fendant's testator. 

Mr. Attorney-General Yi?,^ moved in arrest of judg- 
ment on the following gounds : 

First. — That upon the old maxim of law, which 
SQ.JS," actio personalis moritur cum persona" the action 
does not lie. 

Secondly. — That should this maxim not apply in 
this case, the plaintiff could not recover on the ground, 
that the declaration did not contain any allegation of 
special damage, which it ought to do, under the au- 
thority of Chamberlayne v. Williamson, (o) 

Thirdly. — That this being an action novel in its 
kind, and not any instance cited or suggested of its , 
having been maintained, (although frequent occasions 
must have occurred for bringing such an action,) it 
cannot be supported. 

I have perused most of the cases cited on each 
side, and many others, the result of my own research. 

Although I have many older authorities, (Coke, 
G-ro. Rolle, &c.,) I shall begin with the case of Ham- 
bly V. Trott, 16 G-eo. III. This was an action of 
trover, where the plaintiff, on the principle of the 
maxim, failed, but in that case various rules of law 
on the subject are laid down. Mr. Justice Aston 
says, " the rule is quod oritur ex delicto, non ex con- 

(a) 2 M. & S. 408. 



HILARY TERM, 4 & 5 GEO. IV., 1824. 109 

tractu shall not charge an executor, and cites 2 Bac. 
444, tit. executors. 

Lord Mansfield observes, thai the maxim actio per- 
sonalis, &c., upon which the objection is founded, not 
being generally true, and much less universally so, 
leaves the law undefined as to the kind of actions 
which die with the person, or survive against the 
executor. 

He remarks, " where the cause of action is money 
due, or a contract to be performed, or a promise of 
the testator, express or implied; where these are the 
causes of action, the action survives against the exe- 
cutor; but where the cause of action is a tort, or 
arises ex delicto, there the action dies, as battery, 
false imprisonment, &c." 

No action where, in form, the declaration must be 
quare vi et armis et contra pacern, and where the 
plea must be that testator was not guilty, can lie 
against executors. 

Upon the face of this record, the cause of action 
does not arise ex delicto but ex contractu; the verdict 
therefore, I think, cannot be disturbed. 

It is now agreed that executors are answerable in 
all personal actions, which arise ex contractu, and not 
ex maleficio, {a) for every contract implies a promise 
to perform it, in which the testator could not wage 
his law, because he could not make oath that he had 
discharged a duty before the quantum had been ascer- 
tained by the jury. 

(ffl) 3 Bao. tit. executors and administrators; 9 Coke 87, 10 Co. 77, 6 ; 
Croke Tas. 293, Vaughan, 101. 



110 HILAUT TEEM, 4 & 5 GEO. IV., 1824. 

And it hath been resolved, that there is no differ- 
ence between a promise to pay a debt certain, and a 
promise to do a collateral act, which is uncertain and 
rests only in damages, as to give a fortune to his 
daughter, to deliver up a bond, &c., and that where- 
ever in those cases the testator himself was liable to 
an action, his executor shall also be liable, (a) 

An action lies against an executor upon every 
contract, debt, or covenant, made by a testator, or 
intestate, which appears by any record or specialty, 
so upon any debt or contract without specialty, where 
the defendant could not have waged his law, so where 
the cause of action is money due on a contract, or a 
contract to be performed, or a promise by the testa- 
tor expressed or implied, the action survives against 
the executor, secus if it be a tort, or arise ex delicto 
supposed to be by force and against the peace. 

As to the second point, that should this maxim not 
apply, the plaintiff could not recover, on the ground 
that the declaration did not contain any allegation of 
special damage, which it ought to do under the autho- 
rity of Chamberlayne v. Williamson. This leads us 
to a minute investigation of that case. In Michael- 
mas Term, 1814, a rule nisi was obtained for arrest- 
ing the judgment on the ground that this action was 
not maintainable by the personal representatives, or 
for a new trial on the ground of misdirection. 

Upon the first point the statute de bonis asportatis 
in vita testatoris, and 31st Edward III., were cited • 

(ffi) Cro. Tas. 405, 417, 471; Cro. Tas. 662; BoUe, 266, 3 Bac, tit. 
executors and administrators. 



HILAKT TERM, 4 & 5 GEO. IV., 1824. HI 

and also Com. Dig. tit. administrator B, 13, It was 
said that by the equity of these statutes, an executor 
or administrator shall have every action for a wrong 
done to the personal estate of his testator ; but this, 
it was contended, was not a wrong to the personal 
estate; and in Mordant v. Thorold, 1 Salk. 252, it 
was resolved, that the administrator was not entitled 
to a sci.fa. upon a judgment in dower obtained by 
the intestate, where she died before the damages had 
been ascertained on a writ of enquiry, because the 
writ of enquiry being in the nature of a personal ac- 
tion for the damages, it died with the person; and as 
to the misdirection it was objected, that the criterion 
of damages could not be the same, as if the action 
had been brought by the intestate herself, by reason 
that she would have been entitled to damages for the 
loss of personal comfort, and advancement in life, and 
also for personal feelings; whereas, the administrator 
could only be entitled in respect of the damage or 
deterioration of the personal estate. Upon this point 
Lord Ellenborough observes "that the declaration 
did not contain any allegation of special damage, and 
the question was, whether the action was maintaina- 
ble by the personal representative." 

That the general rule of law is " actio personalis 
moriiur cum persona,^^ under which rule are included 
all actions or injuries merely personal. Executors 
and administrators are the representatives of the 
personal property, that is, the debts and goods of 
the deceased, but not of their wrongs, except where 
those wrongs operate to the temporal injury of the 
personal estate; but in that case, the special damage 
ought to be stated on the record, otherwise the court 



112 HILAKY TERM, 4 & 5 GEO. IV., 1824. 

cannot intend it. That where the damages done to 
the personal estate can be stated upon the record, 
that involves a different question; that although mar- 
riage may be regarded as a temporal advantage to 
the party, as far as respects personal comfort, still it 
could not be considered in that case, as an increase 
of the individual transmissable personal estate ; that 
loss of marriage may, under circumstances, occasion 
a strictly pecuniary loss to a woman, but it does not 
necessarily do so; and unless it be expressly stated 
on the record by allegation, the court cannot intend 
it. On the ground, therefore, that the allegation in 
that case imported only a personal injury, to which 
the administrator is not by law, nor is he in fact 
shewn to be privy, the court were of opinion that in 
the absence of any authorities, the administrator 
could not maintain the action. Lord EUenborough 
plainly shews, that in an action by an executor or 
administrator, special damages must be stated on the 
record, for the court cannot see that the personal 
estate is injured — consequently cannot see that the 
executor is qualified to bring the action. 

As to the third point, " its being a case of novelty," 
I think it no ground for arresting the judgment; the 
not finding any precedent for such an action, ren- 
dered it highly proper that the court should pause in 
order to look at the cases. 

On reason and principle, I think the action main- 
tainable. Its being novel in its kind, is not a decisive 
ground of objection. I am therefore of opinion that 
the rule should be discharged. 

Rule discharged. 



; HILARY TERM, 4 & 5 GEO. IV., 1824. 113 

McIVBR BT AJj. V. McFaRLANB. 

Where a note was made payable at a particular place although no averment 
of its being presented there for payment appeared upon the record, this 
court after a verdict for the plaintiff, and proof at the trial of a subsequent 
promise, refused a nonsuit. 

This was an action upon a promissory note made 
payable at a house at Grlasgow, in Scotland. It was 
tried before the Chief Justice at the assizes for Corn- 
wall, where the defendant's counsel had moved for a 
nonsuit upon the ground, that the declaration con- 
tained no averment that presentment had been made 
at the house appointed in the note. A subsequent 
promise had been made. 

The Chief Justice, considering the recent enactment 
of the British legislature, which makes the averment 
necessary only where it is expressed on the note, 
that it is to be payable at a particular place and not 
elsewhere, overruled the objection and directed a 
verdict for the plaintiffs. 

Jones had last Easter Term obtained a rule nisi, to 
set aside the verdict and enter a nonsuit, or grant a 
new trial. 

Robinson, Attorney-General, now shewed cause. 
He contended that the want of averment should 
have been taken advantage of upon special demurrer, 
and that, at any rate, the proof of a subsequent pro- 
mise and a verdict cured the defect; that the courts 
have determined in a variety of instances, that after 
a verdict it shall be presumed that all has been 
proved which is necessary; that an express promise, 
in the cases upon notes and bills of exchange, will 
relieve from notices which would otherwise be re- 
quired; that this doctrine as against an acceptor, has 
15 



114 HILARY TEEM, 4 & 5 GEO. IV., 1824. 

never .been disputed, and the drawer of a promissory 
note is in the same situation. 

That the court are fully entitled, if indeed they 
are not bound, to notice the new act of the British 
legislature ; that there were many decisions before 
its passing which determined that it was not neces- 
sary to aver upon the record the presentment at a 
particular place ; that there were indeed conflicting 
decisions ; that even if the late act had not passed, 
which set the matter at rest, the court would have 
been fully at liberty to adopt that decision which 
appeared to them best founded in reason and prin- 
ciple ; but, that now, the court could not hesitate ; 
for that the British statute may be fairly considered 
as declaratory of what class of decisions are the most 
correct and beneficial to the public. 

Boulton, Solicitor-G-eneral, contra, contended, that 
although proof of a subsequent promise would be 
evidence to go to a jury that the averment of pre- 
sentation had been complied with, yet that such 
proof could not dispense with its appearing upon the 
record ; that the plaintiff had in fact gone down to 
trial without any cause of action to try ; that as to 
the British statute it is not in force here, and the 
passing it shews that the former decisions were good 
law ; that we are guided in this country by the law 
as it stood in 1792 ; that the determination he con- 
tended for, had been the law of England ever since 
bills of exchange were known ; that there is no cause 
of action stated upon the record, dehors which you 
can prove nothing. Other facts offered to be given 
in evidence, would be irrelevant ; that the court can 



HILARY TERM, 4 & 5 GEO. IV., 1824. 115 

neither look at impertinent evidence, nor can they 
presume that this note was presented according to 
its exigency ; that should the court determine against 
a nonsuit, undoubtedly the judgment must be arrested. 
If the cause of action is alleged faultily, the judge 
at nisi prius should direct a nonsuit ; that for want 
of form you must demur specially ; but for want of 
substance you may either demur or arrest the judg- 
ment ; that if the plaintiff had meant to rely upon 
the subsequent promise he should have set it forth 
upon the record. 

Per Curiam. — Rule discharged. 



Akmour and Davis v. Jackson. 

A writ of venditioni exponas against lands and tenements haying but a few 
days between the teste and return, is irregular, although the exigencies 
required by the provincial statutes respecting the teste, delivery, and 
return of the fieri facias upon which it was grounded, may have been 
complied with. 

Boulton, Solicitor-Greneral, had on a former day 
in this term obtained a rule to shew cause, why the 
writ of venditioni exponas issued against the lands of 
the defendant should not be set aside, there not be- 
ing a sufficient period between the issuing and the 
return of the same. 

Th.Qji.Ja. against the lands and tenements of the 
defendant, was issued on the 23rd day of August, 
1821, and was returnable on the first return of 
Michaelmas Term, 1822, comprising between its 
issue and return, the full period required by the pro- 
vincial statute, {a) 

(ffl) 43 Geo. HI., oh. 1, s. 2. 



116 HILAET TERM, 4 & 5 GEO. rV., 1824. 

The sheriff upon this writ returned, that he had 
taken the defendant's lands in execution, but that 
they remained in his hands for want of buyers. 

On the 9th of November, in Michaelmas Term, 
1823, twelve months afterwards, the plaintiff issued 
the venditioni exponas, and made the same returna- 
ble on the last return of the same term, there being 
only a few days between the teste and return. 

He had contended that the period of twelve months 
required by the provincial statute, extended to a 
writ of venditioni exponas against lands as well as to 
the Ji. fa. upon which it was grounded, the language 
of the statute being sufficiently general to embrace 
it, the words being " that the writ against the lands 
and tenements should not be made returnable in 
less than twelve months from the teste thereof. 

Baldwin now shewed cause.— He contended that 
the venditioni exponas was only a continuation of the 
Ji. fa. which it recites ; that the exigency of the 
statute had been complied with, by the period of 
twelve months having elapsed between the delivery 
and return of that writ. 

That the ven. ex. was issued according to the 
determination of the court, in Boulton v. Small, 
where eight days were laid down as a sufficient time 
between the teste and the return of an execution. 

That the present application was made by the 
sheriff, who can have no right to do so, the parties 
themselves being satisfied. 



HILARY TEEM, 4 & 5 GEO. IV., 1824. 117 

Boulton, Solicitor-GeiQeral, contra, contended, 
that the sheriff was perfectly correct in this appli- 
cation to the court. 

If he should sell under this writ wrongfully, he 
would subject himself to an action of trespass ; and, 
on the other hand, if he should refuse to sell, and 
the court were against him, he would be liable to an 
attachment. He may always apply to the court for 
its decision in these cases. 

That the late decision of the court respecting the 
period between the teste and return of an execution, 
related to those against goods only. 

That those against lands were sui generis and 
regulated by legislative provisions. 

That by the last judicature act, the sheriff is not 
to sell lands without advertising the sale several 
months before it takes place. 

That the object of the statute is, that sufficient 
notice may be given, that purchasers may assemble ; 
but that in the case before the court the formed 
advertisement is nugatory, the day appointed by it 
for the sale being long since past. 

That it is impossible that the sheriff can execute 
this writ, he could not give any notice that could 
answer the intention of the statute. 

That it may be an inconvenience to wait so long, 
but that must be remedied by the legislature, or 



118 HILARY TERM, 4 & 5 GEO. IV., 1824. 

perhaps by sum rule of court to meet the intentions 
of the statute. 

Campbell, J.— I cannot consider that the inten- 
tions of the statute are complied with by the adver- 
tisements under the fieri facias; if there were not 
purchasers at the time appointed for the sale by 
those notices, it is not probable there will be any at 
the return of the venditioni exponas. 

These returns and notices required by law are 
not fictitious proceedings. 

If the law says nothing in precise terms respect- 
ing the time required between the delivery or teste 
and return of this writ, we must refer to some prin- 
ciple for direction, but it is clearly quite contrary to 
the spirit of the statutes that such a proceeding 
should take place instanter. 

Powell, 0. J. — Common sense tells us, that the 
intentions of the statute are not complied with in 
this case. 

The lands are not sold for a year after the return 
of the writ under which the notices required by law 
were given ; at the expiration of those notices, the 
sale was put off indefinitely, after lying by for 
twelve months the plaintiff issues a peremptory 
writ with only a few days between the teste and 
return. 

Can it be supposed for "a moment that, relying 
upon a former notice, these lands can be sold under 
this proceeding ? 



HILAKT TERM, 4 & 5 GEO. IV., 1824. HQ 

It is the custom in the lower province to issue an 
alias, and after a certain lapse of time, a venditioni 
exponas, under which the same course as to notifica- 
tion takes place as under the former writ. 

The court declared the writ to be irregular, but 
gave leave to alter the return. 



Gee v. Atwood. 

This court refused to set an award aside on the ground that the arbitrators 
had desired it not to be delivered until the costs for making it were paid. 

Rolph had in a former term obtained a rule nisi 
to set aside the award in this case upon an affidavit 
stating that the arbitrators were to meet on the 2d 
day of September next ensuing the date of the arbi- 
tration bond, and that the award was to be ready to 
be delivered to the parties in ten days after said meet- 
ing ; that the award was accordingly made on the 
fourth day of September, 1822, and left with a per- 
son with instructions not to deliver it until the costs 
of the arbitration were paid or security given for the 
payment ; that the awards consisting of two copies 
remained in his hands until the 9th day of September, 
when they were given to the plaintiff upon his giving 
the security required. He contended that this con- 
dition being attached to the award, rendered it void, 
as it could not, when so conditioned, be said to be 
ready for delivery. 

Macauley now shewed cause. — He contended that 
the condition did not vitiate the award, if there was 
no award it would be an answer to the action upon 
the bond, that the condition of the bond* had been 



120 HILARY TERM, 4 & 5 GEO. IV., 1824. 

complied with by the award being signed and ready 
for delivery, there was no occasion for its being 
actually delivered, (a) That having signed the 
award the arbitrators -werefuncti officio, and if they 
had no right to annex a condition of payment to the 
delivery, the party interested might recover it by 
action ; that requiring payment of the expenses was 
a matter extrinsic to the award, and which could not 
destroy it. (b) 

Rule discharged. 



The King v. Elkod. 

A writ of exigi facias will be award€d by this court upon the application of 
a prosecutor, without its beiug applied for by the Attorney-General. 

Baldwin on a former day had moved for an exi- 
gent against the defendant, against whom an indict- 
ment for bigamy had been found at the assizes. 
The Attorney-G-eneral had suggested a doubt 
whether as the forfeiture of the goods of the party 
outlawed, went to the Crown, the proceedings under 
the provincial statute (c) should not take place under 
the sanction of the Crown officers, who in this pro- 
vince conducted all prosecutions in capital cases. 

On this day the court observing that there were 
no words in the statute restraining the proceedings 
under it to the superintendence of the Crown 
oflBcers. 

Ordered the exigent to issue. 

(ffl) CaldweB on arbitrations, 168. (6) 6 E. K. 309, and see Grove v. Cox, 
1 Taunt. 165; 8 Taunt. 461, 4 E. R. 584. (c) 55 Geo. III., ch. 3. 



HILARY TERM, 4 & 5 GEO. IV., 1824. 121 

Trubsdale V. McDonald. 

A defendant who takes upon himself to abate a nuisance, viz., a mill-dam, 
may be called upon to pay damages for any injury done to the plaintiff's 
property beyond what was necessary for the purpose of removing the 
public inconvenience. 

This was an action of trespass for pulling down 
the plaintiff's mill-dam ; and was tried before the 
Chief Justice at the last assizes. 

The defence set up at the trial was that the dam 
was a nuisance, inasmuch as though it did not itself 
stand upon the highway, yet it caused the water to 
overflow a neighbouring public road. It appeared 
in evidence satisfactory to the jury that the defend- 
ants had pulled down more of the dam than was 
necessary to remove the inconvenience, and they, 
under the direction of the judge, recommending them 
only to consider such damages as the plaintiff had 
sustained beyond what were necessary to abate the 
nuisance, found a verdict for the plaintiff for £50. 

Robinson, Attorney Greneral, had on a former day 
obtained a rule nisi to set aside the verdict, and 
grant a new trial on the grounds of excessive dam- 
ages and the discovery of new evidence. 

Macaulay now shewed cause.' — 'He contended that 
this being a case in tort the damages were peculi- 
arly for the consideration of the jury ; that the 
defendants had undertaken to abate this nuisance at 
their peril, and by doing more damage to the dam 
than was necessary for that purpose, they had sub- 
jected themselves to an action ; that the damages 
given by the jury, instead of being excessive, were 
very moderate, and to obtain a new trial on the 



122 HILARY TERM, 4 & 5 GEO. IV., 1824. 

ground of excess in an action of tort, it should 
appear that they were vindictive; that it was of 
much more consequence to the public that mills 
should be protected than that the wetting of a person's 
foot should be visited by the destruction of a species 
of property so valuable and useful ; that as to the 
discovery of new evidence which consisted merely 
of admeasurements taken after the verdict, they 
should have been taken j^efore, as it was the plain- 
tiff's duty to come prepared with his evidence. 

Per Curiam. — Rule discharged. 



[123] 
EASTER TERM, 4 & 5 G-BO. IV., 1824. 



Present : 

The Honourable Chief Justice Powell. 
Mr. Justice Boulton. 
Mr. Justice Campbell. 



Hagerman v. Smith. 



Where a debtor is indebted upon two accounts and makes a payment with- 
out directing to which account it is to be placed, the creditor has his elec- 
tion to place it to which he pleases, unless there is a specific direction for 
its application or circumstances in the case tantamount to one. 

Bouhon, Solicitor-G-eneral, had obtained a rule to 
shew cause why two several sums of £75 and £19 
18s. should not be deducted from the amount required 
to be levied under the writs oi fieri facias issued in 
this cause. 

The ground of the application, as stated upon affi- 
davit, was, that the defendant had paid the plaintiff 
the said sums in part satisfaction of the judgment 
obtained against him, under the authority of which 
the fi. fas. had issued. That at the time of defen- 
dant's paying the same, the plaintiff did not object to 
receive the said sums in part satisfaction of the said 
judgment, or express any wish to apply the same to 
any other account or demand. 

At the time of making these payments, the defen- 
dant was indebted to the plaintiff in other sums upon 
promissory notes, to account of which the plaintiff 
had placed these payments, except a small balance 



124 EASTEE TERM, 4 & 5 GEO. IV., 1824. 

which he had placed to the account of the judgment. 
The plaintiff stated upon affidavit, that when the de- 
fendant made these payments, he had not given him 
any instructions as to what account they should be 
placed. 

Eobinson, Attorney-General, shewed cause. — He 
contended, that no instructions having been given to 
the plaintiff, or any arrangement made as to the ac- 
count to which the moneys paid should be placed, 
that he was entitled to place the same to what ac- 
count he pleased; and relied upon Newmarsh v. 
Clay (a) and others, and the authorities there referred 
to. In that case certain acts had taken place which 
clearly evinced the intention of both parties; but here 
there was nothing of the kind. The general rule, as 
laid down in the. cases, was clear that a creditor 
might place money paid to him by his debtor to any 
account he pleased, unless there was an express stipu- 
lation to the contrary, either by words or acts suffi- 
ciently denoting the intention of both parties. 

Chief Justice. — By the French law a creditor 
who receives a payment from a person indebted to 
him upon two accounts must apply it in satisfaction 
of the most onerous debt; but by the law of England 
the creditor may make his election, unless the debtor 
specifically declares at the time of payment to which 
account it shall be applied. In this case, if the de- 
fendant had intended that these payments should 
have gone in discharge of the judgment, he should 
have made them to the sheriff, or taken a special re- 
ceipt from the plaintiff. 

Per Curiam. — Rule discharged. 

"~" (a) 14 East. 243. ""^ 



EASTEB TERM, 4 & 5 GEO. IV., 1824. 125 

The Hon. Gr. H. Maekland et al. {Commissioners 
Jar settling the affairs of the pretended Bank of 
Upper Canada,) v. Daxton. 

The declaration, at the suit of a corporation, named the individuals compos- 
ing it, and also described them in their corporate capacities. The breach 
was in their names as individuals only. The court held that a non pros 
migit be signed and execution issue against them in their private capa- 
cities. 

Washhurn, on a former day, had obtained a rule 
to shew cause why the judgment of non pros for not 
going to trial, signed in this cause, and the fi. fa. 
issued thereon against the plaintiffs, should not be 
set aside for irregularity, on the ground that the suit 
having been commenced by them as commissioners 
and trustees under the act of the provincial parlia- 
ment, a nonsuit could not be entered, and execution 
issued against them, in their private capacities, and 
he instanced the cases of bankrupt's assignees, and 
of executors. 

Boulton, Solicitor-General, contra, contended that 
the plaintiffs were authorised by the statute to bring 
actions as a corporation only, not in their names as 
individuals, as they have done in this case, which 
being erroneous they had not chosen to go to trial ; 
that their situation as a corporation was not analo- 
gous to that of executors or assignees of bankrupts, 
who, notwithstanding their situations as such, must 
be sued as A. B. and CD., &c. That the plaintiffs 
having concluded their declaration without adding 
the description which they had used in the com- 
mencement, was conclusive as to the correctness of 
the plaintiffs taking out execution in their names as 
individuals. 

Washhurn, contra, contended that these plaintiffs 
had not sued as individuals, and therefore were not 



126 EASTER TERM, 4 & 5 GEO. IV., 1824. 

liable to be nonsuited as such ; that their names pre- 
ceding their description, (which was in the very 
words of the statute appointing them commissioners,) 
could not alter their character as plaintiffs; and 
though their description was omitted in the conclu- 
sion of the declaration, its having been used in the 
commencement and throughout, was sufficient to 
couple it with their names in the conclusion. 

Fer Curiam.' — Rule discharged. 



Mitchell v. Tbnbroek, one, &c. 

Where a bill had been filed against an attorney in the office of an outer dis- 
trict and proceedings had thereupon to verdict and judgment, the court 
refused to set them aside for irregularity. 

The defendant in this case was an attorney of this 
court, had been sued by bill and proceeded against 
to judgment. The bill had been filed in the office of 
the clerk of the Crown in the London District, and 
the subsequent proceedings and verdict had in that 
district. 

Macaulay had obtained a rule nisi to set these pro- 
ceedings aside, as being altogether irregular and de- 
fective, on the ground that the bill should have been 
filed in the principal office at York. 

Boulton, Solicitor-G-eneral, and Rolph, shewed 
cause. — They contended, that the words of the statute 
were sufficiently general to admit of proceedings 
being filed against an attorney in the district office. 
That an attorney may waive his privilege altogether, 
and if the proceeding was incorrect, he has waived 
it. It is a mere matter of practice. If the defendant 



EASTER TEEM, 4 & 5 GEO. IV., 1824. 127 

had applied at a proper stage of the proceedings to 
have had the bill filed at York with a view to a trial 
at bar, or in the Home District, his application might 
have been attended to ; but that after verdict and 
judgment, it was clearly too late. 

Per Curiam.-T-'Rvle discharged. 



Myers v. Eathburn. 

The court permitted an amendment to be made in the address. Cause of 
action and teste of a writ of capias. 

Upon the application of Macaulay. — The court 
(upon the authority in 8 T. E., where a writ was 
amended which had by mistake been made returna- 
ble in C. B. instead of K. B.) allowed the writ of 
capias ad respondendum issued in this cause, to be 
amended by striking out the direction " To "William 
Brown, Constable," and inserting "to the sheriff of 
the," by striking out "in a plea of debt of eighty 
pounds," and inserting " in a plea of trespass on the 
case upon promises," and by striking out " before us 
this 2ord day of February, 1824, in the fourth year 
of our reign" in the teste, and inserting in lieu thereof 
"thirty-first day of January in the fifth year of our 
reign." 



BOULTON V. EaNDALL. 

This court fully recognises the rule of HUary Term, 3 James I., which orders 
that no cause once argued and determined, shall again be brought before 
the court. 

In this case, Bolph applied for a rule to shew cause 
why the proceedings and judgment should not be set 
aside for irregularity, and why the writ oi fieri facias. 



128 EASTEE TERM, 4 & 5 GEO. IV., 1824. 

issued upon the said judgment against the lands and 
tenements of the defendant, should not be superseded 
with costs, and restitution made to the defendant. 

A judgment by default had been signed in this 
case, and execution issued and the lands sold under 
it several years ago, and an application similar to the 
present had been made by Stewart, counsel for the 
defendant, who, in Michaelmas Term, 1821, had ob- 
tained a rule nisi, but which, upon argument, had 
been discharged. Various irregularities were upon 
the present application pointed out by Mr. Rolph, 
some of which had probably not been insisted upon by 
Mr. Stewart upon the former motion. The counsel 
now went considerably at length into all the supposed 
irregularities, and also read an affidavit (which was 
filed) containing a statement of those irregularities 
and of the facts and merits of the applicant's case, 
adverting also to the partial want of consideration for 
the debt upon which the judgment was obtained. He 
also cited many cases of new trials at law and re- 
hearings in equity which' he considered as analogous. 

Robinson, Attorney-Greneral, contra, read an affi- 
davit rebutting those facts and circumstances, but 
relied upon the universal practice of courts of law 
(to which no one exception could be found) which 
does not permit a cause once determined upon mo- 
tion and argument to be again brought forward 
either upon the ground of the same or other irregu- 
larities not before insisted upon. He cited and read 
the rule of Hilary Term, 3 James I., by which it 
is ordered, " That if any cause shall first be moved 
m court in the presence of the counsel of both par- 



EASTEB TEEM, 5 GEO. IV., 1824. 129 

ties, and the court shall then thereupon order 
between those parties, if the same cause shall again 
be moved contrary to that rule so given by the court, 
then an attachment shall go against him who shall 
procure that motion to be made contrary to the rule 
of court so first made, and that the counsel who so 
moves, having notice of the said former rule, shall 
not be heard here in court in any cause in that term 
in which that cause shall be so moved contrary to 
the rule of court in form aforesaid." 

The counsel also cited authorities to shew that no 
motion can be made upon the ground of irregulari- 
ties not noticed upon a first motion. 

Campbell, J. — Upon the opening of this matter I 
thought it strange and was indignant that the irre- 
gula,rities pointed out by the defendant's counsel 
should have taken place. 

Whatever were the grounds, it now appears those 
irregularities have been discussed and decided upon 
for many terms back. 

The counsel has referred to a nupaber of authori- 
ties which it was to be supposed he referred to as 
upon a first application and discussion, but it appears 
that was not the case. If they are to be considered 
as furnishing authority for opening and re-consider- 
ing matters already discussed and decided upon, 
■ they do not apply. 

Upon reference to the order in Hilary Term, 3 
James I., it appears such second discussions cannot 
be permitted. Were it not for this salutary rule, 
IT 



130 EASTER TERM, 5 GEO. IV., 1824. 

nothing could be more uncertain than the proceed- 
ings and decisions of courts of justice. There is 
also a penalty attached to the breach of the rule, 
which, as this is the first time it has been attempted 
to be infringed in this court, I should not wish to see 
enforced ; but upon any future attempt of the kind 
I should. 

Chief Justice. — I concur with my brother Camp- 
hell, and for the reason given by him, I also consider 
that the penalty may be dispensed with. 

Per Curiam. — Application refused. 



Dob on the demise op Stanspibld v. Whitnbt. 

Though a probability exists that a defendant in ejectment may have merits, 
the court will not necessarily grant a new trial, the verdict in ejectment 
not being conclusive upon the parties. 

This was an ejectment tried at the assizes for the 
Midland District. 

The facts on the part of the lessor of the plaintiff 
were, that Daniel Washburn, under whom he claimed, 
being in possession of the premises, left this country 
and went in 18 — to the United States, where he 
died, leaving one Short in the possession and charge 
of the premises ; that Simeon Washburn was his 
brother and heir at law ; that Daniel Washburn be- 
ing at the time of his death indebted to the lessors 
of the plaintiff in a considerable sum, his heir at law, 
Simeon, by the advice of counsel, by bargain and 
sale, transferred the property to them in satisfaction 
of the debt. This deed, it appeared, had not been 



EASTER TERM, 5 GEO. IV., 1824. 131 

registered until after the commencement of the suit. 
It further appeared in evidence, that Whitney, the 
defendant, became the tenant in possession by break- 
ing into the premises after the death of Dan. Wash- 
burn, and before any entry had been made by his 
heir, Simeon Washburn, but after the bargain and 
sale made by him to the lessors of the plaintiff; the 
defendant's claim to the premises was under a mort- 
gage made by Daniel Washburn to him, and which 
had become forfeited. The defendant's attorney, 
under an impression that it was necessary to make 
out his title by proving the original grant from the 
Crown, and which, as well as subsequent conveyances 
to Daniel Washburn, he presumed would have been 
proved by the plaintiff's lessor, to support his own 
title, had not given the deed of mortgage in evidence, 
and the jury had in consequence found for the 
plaintiff. 

Macaulay had, in a former term, obtained a rule 
nisi to set aside the verdict, and to grant a new trial 
on the ground, first, that the lessor of the plaintiff 
should have commenced the proof of his title by 
producing the original grant from the Crown ; se- 
condly, that the bargain and sale made by Simeon 
Washburn to the plaintiff 's lessors was void, first, 
as being without consideration and nudum pactum, 
it being made upon a general presumption that the 
lands in the hands of the heir were liable to the 
ancestor's simple contract debts, which was not true 
as a general proposition, but only sul modo; se- 
condly, the consideration not being expressed in the 
deed to be pecuniary ; thirdly, as not being registered 
before action brought ; fourthly, for uncertainty, as 



132 EASTEE TEEM, 5 GEO. IV., 1824. 

not being descriptive of any particular lands ; fifthly, 
because the heir, Simeon Washburn, could not make 
a title before entry upon the lands, his estate being 
abated by the entry of Whitney. 

Thirdly, on the ground of mistake in the defend- 
ant's counsel, which originated in a surprise, the 
plaintiff's attorney having given notice to produce 
title deeds which he did not afterwards call for, on 
a presumption of his doing which the defendant did 
not come prepared to prove them. 

Fourthly, on the ground ol merits, the defendant 
having a clear title under his mortgage. 

Robinson, Attorney-G-eneral, now shewed cause. — 
If justice has been done the court will not grant a 
new trial upon antiquated technical points of law, as 
abatement, disseisin, &c., especially when they were 
not moved or reserved at the trial, (a) The only 
reservations were whether the plaintiff's lessors 
should not have gone back with his title to the King's 
deed, and whether the bargain and sale to him from 
the heir, was not void for want of consideration. 

As to the first, it is clearly laid down, as well by 
Mr. J. BuUer, {b) as in Phillips' evidence, that it is 
sufficient to commence the proof of a title by the 
de9,th and seisin of the ancestor ; as to the second 
objection, the want of consideration, I consider that 
it was good and valuable — a debt due from the 
ancestor to the plaintiff's lessor, the bargainee, and 
which debt the lands of Simeon Washburn, the heir 

(a) 2 Taunt. 217 ; 2 T. E. 4 Edmonson v. Machell ; 1 Bos. and Pal. 338 Cox 
' V. Kitchen. (J) BuU N. P. 103. 



EASTER TEEM, 5 GEO. IV., 1824. 133 

of the bargainor, were chargeable with under the 
5 G-eo. II. The advantages the plaintiff has obtained 
by this verdict are no other than he should have had 
without it, namely, being a defendant instead of a 
plaintiff, for the defendant, if entitled, should have 
brought his action and not have forced Stansfield to 
become plaintiff by a forcible entry. The reasons 
for refusing new trials upon technical objections 
apply more strongly to cases of ejectment than to 
any others, as the judgment is not conclusive, as laid 
down in 10 Mod. 202. 

Macaulay contra.— The cases urged by the Attor- 
ney-G-eneral would apply in this, if, as in those, a 
fair trial had been had ; but the defendant, in fact, 
has had no trial at all. 

His attorney received notice from the plaintiff's 
attorney to produce the original title deeds, from 
which he presumed they would be called for by the 
plaintiff's counsel, and did not therefore bring wit- 
nesses to prove them; but the plaintiff, instead of 
beginning his title with these deeds, commenced by 
the death and seisin of Daniel Washburn, the counsel 
for the defendant erroneously supposing, that it was 
necessary for the plaintiff to commence his title by 
proving these original deeds, and being unprepared 
with such proof gave up his case, and the defendant 
was thereby, in fact, deprived of a trial. The entry 
of "Whitriey has also been urged as an objection; if 
it was an independent fact, it might make against 
him; but coupled as it was with a good title and the 
possession of deeds, it was a fair assertion of his 
right. If the several objections to the plaintiff's title 



134 EASTER TEKM, 5 GEO. IV., 1824. 

had been stated in a case, or upon a special verdict, 
I might without doubt have gone into them all ; and 
I conceive I may do so if they appear upon the judge's 
notes. 

There are many cases of new trials being granted 
upon grounds not moved at the trial, where the ends 
of justice required it. 

In Sutton V. Mitchell (a) a new trial was granted 
the defendant upon grounds which, by the mistake 
of his counsel, were not noticed at the trial ; and in 
D'Aguilar v. Tobin {b) the court granted a new trial 
on account of the mistake even of a witness. 

In the cases of Cox v. Kitchen, Edmonson v. Ma- 
chell, and other authorities cited, the court refused 
to grant new trials upon points not reserved at the 
trial, because they considered that justice had been 
done, or that the proposed defences were not consci- 
entious; but the merits here are with the defendant; 
he holds a mortgage for which he paid his money 
long before the plaintiff took his deed, the very 
taking which, under such circumstances, subjects to 
the charge of buying up a pretended title. 

I conceive that the lessor of the plaintiff should 
have commenced his title with the original grant from 
the Crown. The titles here are not upon the same 
footing with those in England; there a tenant is pre- 
sumed to be in, with the consent of the lord of the 
fee, but here all the lands having been in the Crown 
within sixty years, that presumption fails, and a 

(a) 1 T. K. 18. (i) 2 Marsh, 265. 



EASTER TEEM, 5 GEO. IV., 1824. 135 

grant from the Crown should be proved. On this 
ground the plaintiff, I conceive, should have been 
nonsuited. Short's possession, too, was not such as 
to be that of D. Washburn's; he should have been a 
tenant paying rent, whereas he was a mere casual 
occupant not recognised by the law. 

To make the consideration for the bargain and sale 
to plaintiff good and valuable, it shoald have been 
shewn that the lands in possession of Daniel "Wash- 
burn's heir, were, in fact, liable to his debts, and fur- 
ther, that the consideration was a pecuniary one, as 
laid down in Cruise's Digest, vol. 4, and also, in the 
8th report. 

[BouLTON, J. — You may shew a pecuniary con- 
sideration, satisfied in oxen or other valuable.] 

This instrument is void, too, I contend, for uncer- 
tainty; it describes no land in particular, but all the 
land Daniel Washburn died possessed of. I conceive 
it was void too for want of registry. The English 
statutes appoint a time within which deeds must be 
enrolled, and after registry the title is retrospective; 
but here no time is appointed, from whence it may 
be fairly concluded that the title is not complete 
until the deed is registered. This instrument indeed 
could not be properly registered, for it mentions no 
county in which the lands lie. 

Upon these grounds of objection to the title of the 
lessor of the plaintiff; upon that of merits, which is 
clearly with the defendant, and upon the broad 
principle laid down by Mr. Justice Buller in Estwick 
V. Cailland, "that upon the application for a new 



136 EASTER TERM, 5 GEO. IV., 1824. 

trial the only question is, whether under all the 
circumstances of the case, the verdict be or be not 
according to the justice of the case," (a) I conceive 
that the defendant is entitled to a new trial. 

Robinson, Attorney-G-eneral, in reply, — It is im- 
portant to the real justice of this case that the 
defendant should not have an opportunity of bring- 
ing forward the antiquated doctrine of abatement, 
disseisin, &c., and therefore I contend that these 
points not having been moved at the trial should not 
now be taken into consideration. 

Were this a case in which justice could not be 
done without considering them, I might not perhaps 
object to their consideration ; but it is not so. 
Injustice would take place by allowing the defend- 
ant to take advantage of his own wrong in making a 
forcible entry. Justice is not his object, but he 
wishes to meet us with defects in our title. The 
seisin of D. Washburn is sufficiently substantiated. 
It is not necessary for a person to be confined to 
his house to continue the possession of it ; if he has 
fifty houses he may move from the one to the other, 
and continue his possession by having an agent or 
servant, or even by keeping a key. There is no 
occasion for a person claiming title to go back 
farther than to the death or seisin of the ancestor 
here, more than in England. He is not obliged 
by commencing his proof beyond that, to subject 
himself to make slips or breaches in the chain of 
title. 

(a) 5 T. R. 425. 



EASTER TERM, 6 GEO. IV., 1824. 137 

The ancestor dying seised makes the heir's title 
prima facie good, and it is for the defendant to shew 
a better title. 

The objection to want of registering has been 
taken from a supposed analogy between our registry 
acts, and the English statutes for the enrolment of 
deeds of bargain and sale ; no suoh analogy in fact 
exists ; there are registry acts in England as well 
as here, upon the same principle and for the same 
purposes, namely, that of giving notice to subse- 
quent purchasers, but not to substantiate or confirm 
the title. 

The consideration for the plaintiff's deed was 
the best possible ; there was a just debt due by the 
ancestor, to which the lands were liable under the 
5 Geo. II. The consideration may be money or 
moneys worth, as laid down by my Lord Cohe, who 
says, that a bargainee may aver money or other 
valuables as the consideration. If the defendant has 
merits, he, in his turn, may bring an ejectment, 
which he ought to have done at first. 

Chief Justice. — The points urged by the counsel 
for the defendant appear to be worthy of considera- 
tion ; but the trial had, not being conclusive, as the 
defendant has an opportunity of bringing forward 
any merits he may have, upon an ejectment to be 
brought by himself, the court are of opinion that the 
rule msi should be discharged. 

Per Curiam. — E,ule discharged. 
18 



138 eastee teem, 5 geo. iv., 1824. 

Johnson v. Smadis. 

A defendant may upon the affidavit required for the ai-rest of the persons of 
debtors issue an execution against the body of a plaintiff who has suf- 
fered a judgment of non. pros. 

In this case the defendant had obtained a judg- 
ment of non. pros, and had issued a ca. sa. upon it. 

Boulton, Solicitor-General, moved to set the same 
aside, on the grpund, that this writ did not lie for a 
defendant, the words of the statute authorising it 
being confined to plaintiffs, and not sufficiently 
general to embrace defendants. They only point 
out the affidavit to be made by plaintiffs. 

Chief Justice. — The costs in this case have be- 
come a debt, and I consider a defendant entitled to 
the same remedy a plaintiff might have had if he 
had recovered. 

Campbell, J. — The case here too turns upon a 
fraud, which must have been stated in the affidavit. 

Per Curiam. — Application refused. 



Ex parte Eadenhurst. 

a person may be admitted an attorney of this court upon his own affidavit 
of service where the attorney to whom he was articled is absent from the 
province. 

Mr. Thomas Radenhurst applied this term to be 
admitted an attorney. 

Mr. Ridout, with whom he had been articled, being 
absent from the province, the court admitted Mr. 
Radenhurst upon his own affidavit of service for five 
years without the usual certificate. 



[139] 
TRINITY TERM, 5 GEO. IV., 1824. 



Present : 

The Honourable Chief Justice Powell. 
Mr. Justice BouLTOiSr. 
Mr. Justice Campbell. 



McGrlLVRAT AND WIPE V. McDONNBLL. 

Where to a declaration in debt upon bond, the plea stated that the plaintiffs 
had not made a conveyance according to agreement. The plea held bad 
upon special demurrer for want of shewing what the agreement was, 
although the agreement was referred to and its contents might be collected 
from the condition of the bond as set out upon oyer. 

Declaration in debt upon bond for £900. 

Oyer prayed of bond and condition. 

Bond set out in common form. Condition as fol- 
lows : whereas the above John and Jane McGrilvray 
have by agreement bearing equal date with these 
presents, and for and in consideration of £850 bar- 
gained, sold, aliened, and transferred unto the said 
Allan Ban McDonnell, and unto his heirs and assigns 
for ever, aU that certain parcel or tract of land, situ- 
ate, &c., and have entered into a bond with the said 
Allan Ban McDonnell, the condition whereof is, that 
the said John and Jane McG-ilvray shall and will 
execute and deliver a good and perfect deed of con- 
veyance and title in the law of the said premises, 
unto the said Allan Ban McDonnell, his heirs and 
assigns for ever. And, whereas the said Allan Ban 
McDonnell, hath paid unto the said John and Jane 
McGrilvray the sum of £400, part of the above men- 



140 TRINIiy TEEM, 6 GEO. IV., 1824. 

tioned consideration, and the further sum of £450, 
the rest thereof still remains to be paid; now the 
condition of the above obligation is such, that if the 
above bounden Allan Ban McDonnell, shall and 
will well and truly pay, or cause to be paid, unto 
the said John and Jane McGilvray, or either of them, 
their heirs, &c., the aforesaid sum of £450, which 
remains still due to them, for the said lands by the 
instalments, and at the periods following, that is to 
say, £100, part thereof, when and as soon as a deed 
of conveyance, according to agreement, shall be exe- 
cuted and delivered by the said John and Jane Mc- 
Grilvray for the above mentioned lands unto the 
above named Allan Ban McDonnell, one hundred 
pounds more, another part thereof, at the end of one 
year, one hundred pounds, another part thereof, at 
the end of two years, and one hundred, pounds, 
another part thereof, at the end of three years, and 
the fifty pounds, the rest part thereof, at the end of 
four years, all which terms of years are to commence 
from the day that the above mentioned deed of con- 
veyance shall be delivered according to the true in- 
tent and meaning of the agreement entered into, con- 
cerning the premises, and in case the said payments 
shall be well and truly made according to the true 
intent and meaning of the agreement entered into 
concerning the premises, and in case the said: pay- 
ments shall be well and truly made agreeable to the 
above arrangement, then this obligation to be null 
and void, but otherwise shall remain and be in full 
force, virtue and effect. 

Plea, that the said John and Jane McGilvray, or 
either of them, have npt; at any time heretofore exe- 



TEINIXY TEEM, 5 GEO. IV., 1824. 141 

cttted and delivered to him, the said Allan Ban Mc- 
Donnellf a good and perfect deed of conveyance and 
title in and to th& said before mentioned premises 
according to their agreement, &e. 

Demurrer assigning for cause that it is stated in 
the said plea that the said John McGrilvray and Jane 
McGrilvray, or either of them, have not at any time 
heretofore, executed and delivered, or caused to be 
executed and delivered, to him the said Allan Ban 
McDonnell, a good and sufficient deed of conveyance 
and title in the law in and to the premises in the said 
plea- mentioned, according to their agreement; and 
yet it does not appear in and by the said plea what 
the said agreement was, joinder. 

BouUon, Solicitor-G*eneral, in iavour of the de- 
murrer, contended, that defendant to be relieved 
from his bond, must shew that he has performed the 
condition or an excuse for the non-performance. This 
excuse is that the plaintififs have not made a deed ac- 
cording to their agreement. 

But in order to shew that they have not done it 
accordimg to agreement, the defendant must shew the 
agreement, which must necessarily be in his own pos- 
session, and the agreement appears to be in writing 
by the recital; in. the bond. — 4 East. 346. And as 
the bond gives a prima facie demand to plaintiff, de- 
fendant must discharge himself by shewing that he 
has done all be could. Now the agreement may be 
that the plaintiffs were to make a deed at a given 
place, on a given day, in which ease it would be 
necessary for defendant to say he was at the place 



142 TKINITY TEKM, 5 GEO. IV., 1824. 

on the day with the money, ready to receive the 
deed, but that no deed was tendered; and the coun- 
sel cited 4 East. 340; Douglas, 688; Com. Dig. 
Pleader, 640, 1; Croke, James, 360. 

Robinson, Attorney-Greneral, contra, considered 
the arguments and authorities produced not as quite 
in point. They applied to cases where the party 
pleading them was to perform them; in the present 
case the defendant pleads a non-performance by the 
plaintiff. 

The agreement to be performed by the plaintiff in 
this case, was clearly set out in the condition of the 
bond, and it was unnecessary that the court should 
intend any other agreement. That referred to was 
a mere minute and subsidiary to that set out in the 
bond. The reference to it may be considered as sur- 
plusage, which does not vitiate a plea in bar. 

The plea states, that they have not made a title 
accordiug to agreement, viz., according to the agree- 
ment recited and set out in the condition of the bond. 

That the courts have relaxed in requiring the 
common averment of readiness to perform. .At any 
rate, to take advantage of its absence, the want of it 
must be set down as a cause of demurrer, it beino- 
only matter of form. 

Boulton, Solicitor-G-eneral, in reply. — That it was 
impossible to take issue upon a recital ; that the de- 
fendant, by erroneous pleading, had prevented the 
plaintiff from taking those objections to the agree- 



TRINITY TERM, 5 GEO. IV., 1824. 143 

ment referred to, whicli a more authorised course of 
pleading would have enabled him to do. If the whole 
agreement had been set out he might have pleaded 
non est factum— forgery, &c. ; that its construction 
might have been different; that it might have em- 
braced matters of defence for its non-performance; 
that the plaintiff might have had oyer as it was not 
for him to set out a deed in the possession of the ad- 
verse party; that the plea being bad for uncertainty 
and one upon which it was impossible to take issue, 
the plaintiff was entitled to judgment. 

The court gave their opinion in favour of the de- 
murrer, but allowed the defendant to amend. 



HlNNBRLBT V. GoULD. 

Where with a yiew to give a defendant time, the plaintiff had upon the mis- 
information of the deputy sheriff given a receipt for the debt, as the only 
proper mode of staying the execution, and which receipt the sheriff had 
stated in a return to the writ of ^. fa., the court ordered an alias to issue. 

Robinson, Attorney-G-eneral, applied for leave to 
' take out an alias writ oi fieri facias against the goods 
and chattels of the defendant, to levy the residue of 
the debt and costs in this action, notwithstanding the 
return of the sheriff to the last writ of fieri facias 
upon matters disclosed to the court on affidavit, sug- 
gesting that the same is yet unsatisfied. 

The sheriff's return stated, that by virtue of the 
writ he had the plaintiff's receipt for £675 10s. Id., 
and had levied of the goods and chattels of the within 
named Seth B. Grould, £17 10s., and his fees. 

The affidavit of the plaintiff stated the issue of the 
execution. 



144 TEINITY TEEM, 6 GEO. IV., 1824. 

That be the plaintiff was applied to by the defen- 
dant to delay proceedings thereon for a certain speci- 
fied time ; that plaintiff being willing to do so, wrote 
to the sheriff to that effect ; that he was informed by 
the deputy sheriff that proceedings could not be de- 
layed beyond the return thereof, unless plaintiff 
would execute a receipt written by the said deputy, 
which he accordingly signed, supposing that the same 
was intended merely as a stay of proceedings ; that 
deponent had not received any money under said 
execution except the casts paid to his attorney. 

The deputy sheriff's letter, requiring the receipt 
as a means of staying proceedings, was annexed to 
the afiidavit, and sworn to be written by him. 

Application granted. 



Brown v. Stuart. 

Held, that the entry of the incipitur upon the roll, is a silfficieat entry to 
enable the defendant to move for judgment as in caee of a nonsuit. 

Boulton, Solicitor-G-eneral, had obtained a rule 
nisi in this cause for judgment, as in case of a non- 
suit for not going to trial pursuant to notice. 

Macauhy shewed cause, and contended that the 
issue should be entered at length upon the roll be- 
fore this motion could be made and cited. — 1 Arch- 
bold, 130; 2 Tidd, 801. 

The defendant's counsel contra, contended that the 
incipitur being entered upon the roll, was sufficient, 
as may be collected from Tidd, who lays down that 



TRINITY TERM, 5 GEO. FV., 1824. 145 

the record is a transcript of the issue roll, and that 
the record cannot be passed until the issue is entered, 
but that the incipitur answers to the issue. 

Chief Justice. — With regard to trial, an incipitur 
is sufficient; but when an application is made to the 
court above, the issue should be entered and the roll 
completed. 

Per Curiam. — {Diss. 0. J.) — Rule discharged upon 
plaintiff's paying costs and undertaking peremptorily 
to go to trial at next assizes. 



BouLTON V. Randall. 

The proper style of this court is " before his Majesty's justices " not before 
the King himself, coram vobis, not coram nobis. 

Washburn moved for the allowance of a writ of 
error, coram nobis. 

Boulton, Solicitoi-Greneral, objected that the writ 
should have been coram vobis — that all writs here 
should be returnable before his Majesty's justices. 
In England, the Court of King's Bench is ambulatory, 
following the person of the King, but here it is sta- 
tionary. In England the parliament may sit in 
Westminster, and the Court of King's Bench where 
the King himself is ; but in this country, the court 
must sit where the parliament sits. 

The Attorney-General observed, that if the writ 
was defective it might be quashed in this court or in 
the Chancery. 
19 



1415 TEINITY TEKivl, 5 (JEO. IV., 1*24. 

fo this observation the Chief JuBTiciS iassented, 
observing, (with the court) that the stylie of the court 
hitherto adopted in writs was iflipk'oper, biit that 
they would not interfere with a practice which had 
obtained for such a length of time. 

Per Cmam.—'Vfiit allowfed. 



Hon. G:. H. Markland bt al. {Co?nmissioners for 
settling the affairs of the pretended Sank of Upper 
Canada) r. Bartlet. 

The statute vesting the property of a particular bank in the hands of com- 
missioners with power to hear and determine claims made upon the bank 
by creditors — though stated in the preamble to be made "on behalf of a 
great portion of the inhabitants of the province," was not considered by 
this court as a public statute. 

Robinson, Attorney-G-eneral, had, in last Easter 
Term, obtaified a rule to shew cause why, a nonsuit 
shotild not be entered upon several pblhts stated and 
insisted upon at the trial; the first grbund for the ap- 
plication, was, that the provincial statute (a) under 
which the plaihtiffs acted, was a private ahd liot a 
public statut'6, and therefore shotild have been set out 
in the declai'ali'Oti, and proved at the trial. 

Bmlton, Solicitot-Creneral, shewed Cause. — f he 
first point reserved fot- the decision of the coutt iS, 
whether the proViteial statute which vests ih the 
haM6 of the Jilaintiffe as commissioiiers all the stock 
of the pretended Bank of Upper Canada, lately estab- 
lished at Kingston, is a public or private statute. 
The intention of the legislature, I conteiid tb be 
the grotind which should decide this question, la&'d 

"~ (o) 4 Geo. IV., c. 22. 



'XmW '^W' 5 <3;E0. ly., 1824. 147 

that, if it appears ffom % statute itself, that the leg- 
i^la,t\i;:^ iutendied it tQ H^e a public s.tatnte, tlie qoiirt 
will give it that construction. 

This act states in its preamlple, "that the Vank 
association li,ad stopped paynient, wherebj a great 
portion of the inhabitants of this province, holding 
thei?- bills or notes, and ^ho had taken fiieir stock, 
as veil as others, are defrauded of the sanie, and are 
likely to be without redress, nnless some legislative 
remedy should be provided for their relief." 

For whose jelief ? For that qf a great portion of 
the inhabitants of this proyince, as well as others. 
These words are so general, that I am surprised it 
could ever have been doubted whethef a statute 
having gnel^ a pyeanible was public or private. 

It is the practice and law of parliament not to niake 
private acts, except upon petition ; it is evident that 
this statute could not have been so made; it purports 
to be fQy tJfie beneftt of % great portion qf the inhabi- 
tants o| the province, and others, and no individu£i|s 
are, or indeed cpnld be pointed out or designated, 
for whose benefit, or upon who^e petition, it conW 
have been fj-ajned. 

This apt i^ not at all confined, either in its language 
or its objects, as many ^British s,ta,tntes are, who^e 
provisions affect a great many individuals, such as 
ihos^ relating to particular as^opiatiojjs of different 
trades, as butchers, chandlers, &c., vhich are con- 
sidered as private acts, becaws^ their operation is 
confined to cer4:ain designated persons, pointed out, 



148 TRINITY TERM, 5 GEO. IV., 1824. 

if nof by their names, as individuals, by that of their 
profession or mystery, but this statute applies to the 
public CO nomine. 

The board established by it is a court of record, 
with power to hear and determine, open to all the 
King's subjects, not restricted, either as to amount or 
persons possessing an authority as to its generality 
equal to that of the King's Bench, inasmuch as every 
member of the public body may become a suitor 
in it. 

It is laid down in Bacon's abridgment {a) that al- 
though the words of a statute may be particular, its 
general application may make it a public statute. 
The act before the court is particular as applied to 
the bank, but general as it affects the public at large, 
in the same manner as a statute, regarding a partic- 
ular trade, if made expressly for the benefit of the 
country in general, is a public act. 

Again, what inconveniences would arise by consid- 
ering this as a private act ? No person could take 
advantage of it, except by pleading it specially — it 
would be a nuisance, instead of a benefit ; its object 
is to afford an expeditious and easy remedy for the 
holders of bills, bank paper, or securities, to enable 
them in person to go before the board constituted 
by it, and to obtain a quasi judgment at a trifling 
expense ; its intention is not to take away any rem- 
edy which may be had under the 14th Geo. II., ch. 
37, but to furnish an additional one, the proceedings 
under that statute, being expensive and inconvenient; 

(o) Tit. Statutes, 374. 



TRINTY TERM, 5 GEO. IV., 1824. 149 

but should it be construed to be a private statute, it 
would furnish no additional remedy whatsoever. 

The act authorises the board to issue subpoenas, 
an authority incidental to it indeed, as a court of 
record ; but if the act is to be considered as a pri- 
vate one, a witness might refuse to attend unless the 
suitor obtains a subpoena or exemplification of the 
statute under the great seal, and this is not an ideal 
inconvenience, but one which would frequently arise. 
The same observation applies to commissioners in 
the King's Bench, who are authorised to take affida- 
vaits touching matters before the board, who need 
not recognise this act (if it is a private one) without 
a similar authority. 

The King is interested in the proceedings under 
this statute, which as laid down in Skinner (o) makes 
it a public act. The board constituted by it, is 
authorised to take recognisances, the forfeitures of 
which go to the Crown. 

The act creates the public offence of perjury, the 
fine upon a conviction upon which, would also go to 
the King. 

The ancient doctrine which affected to confine 
every thing to genera and species is now exploded, 
and many statutes, which would, by Lord Coke and 
other lawyers, have been considered as private, are 
now considered as public. 

The statute regarding all sheriffs, (5) would have 

(o) King T. Bags, Skinner, 428. (6) 23 Hen. VI., ch. 9. 



IQO TBINITy TEBM, 5 GEO. lY., 18^4. 

been considered as a private one, because, say these 
ancieAt lawyers, all officers are a genus, but all 
sheriffs are only a species. 

But this exposition is now changed to one more 
rational as appears in Lord Raymond, {a) who lays 
down that the act for the discharge of poor debtors, 
is a public act, because all the people of England 
may be concerned as creditors to these poor debtors, 
and so may all the people of Canada, or of the United 
States, be creditors to this poor bank. Another 
very important ground of the decision in Lord R^- 
mond, and which applies most forcibly to the act 
before the court, was that the expense of pleading 
the poor debtor act specially, would put the insol- 
vents to so great an expense as to disable them from 
taking advantage of it. 

The sheriff's act would now be considered as a 
public statute, and that does not affect the interest of 
every member of the public body, for there are 
many large divisions of it, as peers, lawyers, and 
others, who are not subject to be arrested. 

On these grounds, namely, that the act it made 
expressly for the benefit of a great portion of the 
public, without petition, the very general jurisdiction 
which it establishes, that the King is interested in 
its provisions, and the great inconvenience which 
would arise from a contrary construction, I contend 
that the act of legislature before the cpurt should be 
considered as a public statute. 

Robinson, Attorney-G-eneral, contra. — Immediately 

(c) Jones y. Axed, 120. 



TftlNtTY TEftM, 5 GteO. IV., Mi. l5l 

after the tritA of this cailse I insisted upon the dis- 
tinction which takfes place between public and private 
statutes, in the proceedings which are had upon them 
in courts 6f justice, viz., thM the former are recbg- 
nis'6d, bttt that t^e latter hiilst be set forth !ahd 
pl'oved. 

To lead to the decision of the question before the 
cotttt, viz., Whether the statute under consideration 
is public or private, I will first refer to Bacon's 
abridgment, where We find the following summary: 

That a statute which relates to all the subjects of 
the realm, is a public statute. 

That a statute which concerns the King, is a 
public statute. 

That a statute which concerns the public revennei 
is a public statute* 

That a statute which concerns trade in general, is 
a public statute. 

Ati'd Whicli is to be observed as applicable h61*e ; 
it is thete laid d6Wh tkt the Statilte of ttenry VI., 
hy which "dH corporations and licenses glinted by 
that prince a!re 'declai-ed to bC roid is a priWte 
Statute. 

The act Uhder consideration does not concern all 
hanks, for if a similar institution Were to arise to- 
mortioSiv", it would Uot be effected by it. It islMpCs- 
siblte that an aCt SO confiued in its operation, cau be 
entitled to the privileges of a public statute, without 



152 TRINITY TEEM, 5 GEO. IV., 1824. 

the clause so frequently inserted, with a view to 
entitle private acts to be considered as public. 

If acts relating to such bodies as the universities, 
are to be considered as private, is it at all reasonable 
to suppose that one relating to a single obscure bank 
should be treated as a public one ? 

It concerns only certain creditors of the Kingston 
Bank. It is not a general law of the land, but made 
to relieve certain individuals, and cannot, upon any 
principle, be considered other than a private act. 

An act relating to all trades, would be considered 
as a public statute, but one relating to a company of 
grocers, butchers, or other specific trade, would be 
private acts, although in their operation, such acts 
might materially affect the public, but this statute 
does not even relate to banking associations in gen- 
eral, and did it relate to all banks in Kingston, it 
would still be private. 

The British statutes relating to the chartered char- 
itable corporations of London [a) were regarded 
upon general principles as private statutes ; the first, 
similar in its provisions to the act in question, was 
made a public act by an express clause, the second 
is printed in the statutes as a private act. [0. J., 
that statute was made public by the clause, because 
it was brought into the house upon petition.] If your 
lordship means to infer that where statutes are not 
brought in upon petition, they are public statutes, 
I should conceive such inference as not founded upon 

(a) 6 Geo. II., o. 36. 



TRINITY TERM, 5 GEO. IV., 1824. 153 

authority, for if that were the case, we should never 
hear of long arguments to shew whether a statute 
was public or private, but the court would direct 
the rolls to be searched. 

In the discussion which is stated in the term re- 
ports {a) respecting a particular trading company, 
Mr. Justice Biiller does not hint at a distinction ol 
that sort. Among our own provincial statutes there 
are many of a private nature which have not been 
brought in upon petition, as the acts for erecting 
gaols and court-houses, giving sums of money to par- 
ticular individuals or districts. And on the other 
hand, if the great body of the province were to 
petition for the redress of some public grievance, 
could it be said that a statute redressing it was pri- 
vate? So that I should infer that the circumstance 
of an act being brought in, either upon or without 
petition, does not furnish sufficient ground to make 
it public or private, but that the distinction must 
evidently be drawn from the statute itself, and not 
from the manner in which it originated. 

Many British statutes have given very extensive 
and general remedies and powers, fully equal to those 
in the act under consideration, but which are evi- 
dently, upon general principles, considered as private 
statutes, as a clause has been added to give them the 
advantages of public acts — as the charitable corpora- 
tion act before referred to, and our own back acts. 
[0. J. that clause was necessary to prevent their 
being considered as private acts because they arose 
upon petition.] Your lordship will never find that 

(o) 6 Geo. II., ch. 36 ; 7 Geo. II., ch. 11. 
20 



154' TRINItr TEBM, 5 GEO. IV., 1824. 

petition or no petition, has been the ground of deci- 
sion; surely A. B. or 0. petitioning for a public bill 
could not make it private, as for instance for an act 
of habeas corpus or a reform in parliament • the object 
of it, and not the manner of bringing it in, must de- 
cide its character. 

I will refer to a number of British statutes acknow- 
ledged to be private, and I am convinced that the 
court upon comparing them with the one under con- 
sideration, will not hesitate to declare it to be a pri- 
vate act. 

The 55 Geo. III., c. 3, is for the establishment of 
the London Dock Company, and gives very large 
powers of fining. 

The same statute, c. 9, for building a court house, 
&c., for the county of Hereford, gives very large 
powers, and yet both these acts have the clause. 

There is not one argument the counsel has ad- 
duced to shew this a public act, and which he has 
drawn from the powers given to the commissioners 
under it, but which might be applied to these two 
statutes, which are acknowledged to be private. 

The same statute, c. 45, for preserving the public 
records of the county of Surrey, and which gives fees 
to the clerk of the peace, which all persons may be 
interested in the payment of, is considered as private. 

The same statute, c. 91, for enlarging Cheapside 
and establishing the new post-ofBce, establishes a 



TRINITY TERM, 5 GEO. IV., 1824. 155 

court of record, authorises imprisoainent, fines, the 
summoning juries, &e. This statute, I take it for 
granted, did not arise upon petition, yet it has the 
clause. 

The same statute, c. 99, regulating the assize of bread 
within the bills of mortality, and within ten miles of 
the Royal Exchange, general as it is, has the clause. 

These clauses are added to prevent inconvenience; 
but if the argument which the counsel attempts to 
draw from inconvenience were applicable, the clause 
in these statutes would be quite unnecessary. 

The 46 Geo. III., establishing the Philanthropic 
Society, arose probably upon petition from the long 
string of facts ; and from the purport of the act now 
before the court, it might reasonably be inferred 
that it also arose upon petition, yet neither in the 
one case or the other should I conceive that as 
a ground of decision. 

This last statute uses the word "public," as ours 
does "a great portion of the public," from which I 
infer that the use of either of those terms as desig- 
nating the object of a statute would not constitute 
it a public act. 

The 46 G-eo. III., c. 32, for preventing frauds 
in the admeasurement of coals in several parishes 
in Surrey, an act giving great and very general pow- 
ers, has the clause. 

In the 2nd and 3rd of Anne, establishing a regis- 
try in the county of York, there are clauses that 



156 TRINITY TERM, 5 GEO. IV., 1824. 

would overturn all arguments which attempt to shew 
that the act before the court must be a public statute, 
merely on account of the powers vested in the board 
or the proceedings to take place under it ; yet it was 
thought necessary to declare this to be a public 
statute by the special clause. 

I consider that this act has no more title to be 
considered as a public act, than one which would for 
the benefit of creditors make a person subject to the 
bankrupt laws, who was not so before. 

Every one might, by possibility, be a creditor to 
the bankrupt, but that would not make it a pub- 
lic act. 

The counsel's argument as to the number of per- 
sons who might be interested as creditors to this 
self-constituted bank, applies much more strongly to 
ferries and highways, all acts relating to which arc 
nevertheless private, unless aided by the clause. 

I agree that many acts which would formerly have 
been considered as private, would now be con- 
sidered as public. They have been pointed out by 
the counsel on the other side, but there is no autho- 
rity to shew that an act relating to a particular com- 
pany of trading men, is to be considered as a public 
act, however numerous their creditors may be. 

The act respecting weavers is in Levinz (o) deter- 
mined to be a private statute, and yet that, as well 
as similar acts, contain certain rules for the govern- 
ment of different trades, which are highly beneficial 
to the public, but as their immediate objects are cer- 

(a) 1 Levinz 294. 



TRINITY TERM, 5 GEO. IV., 1824. 157 

tain trades only, and not trade in general, they are 
private statutes, unless made otherwise by the spe- 
cial clause. The same distinction is laid down in 
Grilbert's evidence by Loft, and the doctrine laid 
down in Colce is referred to in those authorities. 

In none of the arguments respecting the nature 
of a statute, can I find any question made as to 
whether it arose upon petition or not. 

[Chief Justice. — It is the modern practice of 
parliament not to entertain private acts without 
petition.] 

I should doubt whether the rule is so general as 
to determine that a private act could not be enter- 
tained without petition ; I should conceive it possible 
that a member in his place asserting a grievance 
would be attended to, though it might be of a private 
nature. 

When a counsel rises at nisi prius, and asserts for 
the first time that an act is private, I should not 
expect that the court would enquire how it origin- 
ated, or require that the counsel should have searched 
the rolls of parliament before his circuit. 

If the act before the court even extended to all 
banks set up since a certain period, it would be pri- 
vate upon the same principle that the statute declar- 
ing all charters made in the reign of Henry YI. is 
construed to be so. 

Any restriction as to time or place makes a sta- 
tute private. 



158 TRINITT TEEM, 5 GEO. IV., 1824. 

A Statute affecting a single bank in Kingston, is 
certainly more particular than one which takes in a 
whole king's reign, and much more so, if confined 
to individuals, even though its enactments might be 
beneficial to the province at large. 

[Chief Justice. — Modern times do not sustain 
private acts, unless upon petition, and it is acknow- 
ledged in Comyns that such a proceeding makes them 
private.] 

Blackstone does not recognise the distinction, and 
even were it so, your lordship may infer more from 
it than the fact would warrant ; it is not a British 
statute which is under consideration, therefore nothing 
could be drawn from that practice, unless it was also 
a rule of this legislature. 

[Campbell, J. — The legislature may make arrange- 
ments for convenience to the house.] 

Can a court be bound by a rule of the houses of 
legislature ? A statute must be construed as a will 
must, from itself looking at itself only. An inference 
drawn from its being brought in by petition or other- 
wise would go too far. It would follow that all acts 
brought in upon petition, however general, would be 
private, and one upon the most trifling matter, if 
brought in without petition, must be declared a public 
statute by the judges; but there is nothing in Comyn 
or Dyer, to lead to a supposition that petition or not 
was ever considered in adjudging an act to be public 
or private. 

If this act gave an authority to try all causes that 



TRINITY TERM, 5 GEO. IV., 1824. 159 

might arise in the proviQce, it would be public, but 
it must neither be confined to place or persons. 

The act for the relief of all friendly societies (a) 
did not arise upon petition, yet it has the clause. It 
is upon principle quite impossible to consider that 
act as private and ours as public. The same may be 
said of the act in favour of the G-lobe Insurance 
Company. 

My learned friend says, look at the intention. I 
say so too, but that we are not to go out of the act. 
If he means to say that we are to consider the pro- 
bable intention of the legislature collected otherwise 
than from the act itself, he goes too far. 

The legislature may have supposed they knew the 
distinction between a public and a private act, and 
have been mistaken. 

What says the preamble to this statute ? " That 
certain persons set on foot an association." What 
is the title ? "An act vesting in the hands of certain 
commissioners all the stock and property of the pre- 
tended Bank of Upper Canada." In every member 
there is a particularity. 

It does not, in its provisions, establish a general 
court of record, but one to wind up the bank con- 
cerns. If the parliament were to make an act to 
settle any one man's affairs, it might equally claim 
to be a public statute if his creditors happened to 
be numerous. 

(fl) 33 Geo. ni., ch. 34. 



160 TB.INITY TERM, 6 GEO. IV., 1824. 

Look, the counsel says, at the inconvenience of its 
being construed a private act. The legislature 
should have remedied that as they have done in our 
own bank act by a clause. 

As to the King being interested, he is equally so 
in most of the acts I have cited. 

In fact, all my learned friend's arguments I con- 
sider as answered upon principle, strengthened as it 
is by the numerous British acts avowedly private, 
but possessing infinitely more claim to the privilege 
claimed for this statute than it possibly can. 

BouUon, Solicitor-Greneral, in reply. — From the 
well known practice of parliament to frame private 
acts upon petition, and the fact that the act under 
consideration was brought into the house without 
petition, I argued it to be a public statute, but this 
was only one of several grounds of argument. 

The learned Attorney-General has referred to the 
Registry Act and many British statutes, and wishes it 
to be inferred that if statutes of so great importance 
as to the objects they embrace, and of so general an 
influence in their operation, are to be considered as 
private statutes, that it is quite unreasonable to sup- 
pose the act before the court can be deemed a public 
one ; but the evident distinction is, that the acts he 
has referred to are necessarily confined in their 
operation to certain individuals, as the Yorkshire 
Registry act to persons holding lands in that county; 
the act respecting friendly societies, to the mem- 
bers of each particular society; as if an act was* 



TRINITY TERM, 5 GEO. IV., 1824. 161 

made to establisli a bank in each district of this pro- 
vince, it would be a private act. 

The acts respecting ferries and highroads have 
been referred to as of great public concern, yet pri- 
vate acts. 

They are of public concern inasmuch as all trav- 
ellers may be interested in them, but the provisions 
in the acts relating to them have for their objects the 
persons concerned in their management, and those 
acts are therefore private. The same may be said 
of acts relating to the management or fund of thea- 
tres. It is the pecuniary benefit to individuals, and 
not the pleasure or convenience which spectators or 
travellers may derive from them, which the law con- 
siders. 

The relief proposed by the statute is not confined 
to the holders of bills, but is intended for many 
others, as for persons who may have deposited 
money, plate, title deeds, or other valuables in the 
bank. 

It is true, as urged by the Attorney-G-eneral, that 
courts of pretty extensive jurisdiction have their 
origin from private statutes, but however extensive, 
they are local ; whereas the jurisdiction given by 
this act is not confined to Amherstburgh or Cornwall, 
but extends over the whole province. 

The act respecting poor prisoners is very similar 
to this, and the principle upon which Lord Raymond 
decided upon that act, fully applies to this, " that 
21 



162 TRINITY TERM, 5 GEO. IV,, 1824; 

every person in the country might be a creditor 
under it," and "that without considering it as a 
public statute, it would be useless." 

The counsel on the other side has in argument 
assumed, that all the statutes which he has referred 
to would have been considered as private, if the 
clause had not been added to themj but as applying 
to several of them, the inference is not warranted ; 
it may have been inserted ex abimdanti cautela, to 
prevent a possibility of doubt. 

The post-office act which has been remarked upon, 
though an act very beneficial to the public, immedi- 
ately affects the property of individuals. 

That respecting the admeasurement of coals, how- 
ever important, is nevertheless local. 

Acts relating to courts of justice in particular 
counties are private, because they cannot affect all 
the King's subjects, but there is a legal possibility 
of all the inhabitants of this province becoming 
suitors in the court established by this statute. 

The title to an act is no key to its construction, 
though the preamble is, as far as it goes ; there are, 
nevertheless, clauses and provisions in many statutes 
quite unconnected with the preamble. 

Some clauses may be public, others private ; but 
it would be absurd to consider the clause in this 
statute' respecting affidavits as public, and the rest of 
the statute as private. 



TKINITY TERM, 5 GEO. IV., 1824. 163 

Our act has recognised, aud, as it were, made a 
part of itself, the public British statute 14 G-eo. II., 
which is another reason ifor its being considered a 
public statute. 

The distinctions respecting the British acts have 
been so various and contrardictpry that the court are 
left to decide upon the general broad principle, 
whether the act is made for the benefit of the public 
or for that of individuals. 

I consider that I have shewn this statute to be 
public from the great public benefits it had in view, 
as well as from the other grounds I previously laid 
before the court. 

Chief Justice, — On the first view of this point 
made for the opinion of the court in this case, I con- 
sidered that the act of assembly in question must 
be taken to be a public act, but I have endeavoured 
to catch the distinction as found in the books, where 
I find much to doubt and little to fix my opinion. 

It appears to me, however, that the same act may 
be in some parts private and particular, to be pleaded 
or given in evidence, and in others public and gen- 
eral, to be noticed by the judge as such. 

The enactment transferring the stock and credits 
of the bank to the commissioners I consider a par- 
ticular provision, which, as relating to the parties 
only, is particular and private, and therefore must 
be pleaded, or at least given in evidence. 

The terms of the reference rendering such con- 



164 TBINITy TERM, 5 GEO. IV., 1824. 

struction fatal to the verdict, I hold it unnecessary 
to offer any opinion on the other points, unless the 
majority of the court should be against me on this. 

Campbell, J.— It appears that the plaintiffs have 
by an act of the provincial legislature been consti- 
stuted a board of commissioners or trustees, for the 
special purpose of settling the affairs of a certain 
insolvent, unauthorised association, called the pre- 
tended bank of Upper Canada, and in that capacity 
have brought the present action under authority of 
the said statute, to recover the amount of two bonds 
/or the benefit of the creditors of the said banking 
association ; and the question now under considera- 
tion of the court, arises on a point reserved at the 
trial, stating that the statute under which the action 
is brought is a private act, and as such ought to 
have been specially pleaded and set forth by the 
plaintiff. 

Similar questions have heretofore undergone much 
discussion in the courts at "Westminster, attended in 
some instances with such difficulty as to have pro- 
duced contradictory decisions, a circumstance which 
has in the present case afforded to the learned coun- 
sel, on both sides, an ample field for argument, and 
a more than usual opportunity of citing authorities 
in support of their respective positions, and of which 
they have certainly availed themselves with much 
ingenuity and talent. 

The broad distinction between public and private 
statutes is, that the former are general laws which 
regard the whole community, and of which the courts 



TRINITY TERM, 5 GEO. IV., 1824. 165 

must ex'S>ficio take judicial notice, without being spe- 
cially pleaded — the latter are such only as regard 
either individuals or distinct parts of the community, 
and therefore must be specially set forth or shewn 
in the pleadings by those who claim remedy under 
them. Many, however, of the latter description are 
so complex in their provisions and enactments, or 
so extensive in their operation, as to render it 
extremely difficult to ascertain the precise line of 
distinction, and this has been the cause of the differ- 
ences of opinion I have alluded to, amongst judges 
of great eminence, such as Rolle, Glynn, Hak, 
Tmsden, Montague, Mansfield, and others. In or- 
der to avoid such serious inconveniences in the 
administration of justice, the legislature have in 
modern times been much in the habit of stamping the 
character of public acts on statutes of very extensive 
although not of general operation. This is done by 
adding an express clause to that effect. Such are 
the 2nd and 3rd of Anne, ch. 4, for the registry of 
deeds in the west riding of the county of York, the 
33 Geo. III., ch. 3, for regulating the trade and 
business of pawnbrokers, and ch. 54, for the relief 
and encouragement of friendly societies, and many 
other British acts besides our own Bank act, all 
which the courts of law would be under a necessity 
of considering as private, were they not made pub- 
lic statutes by the addition of those special clauses. 

The act now under our consideration has no such 
clause, consequently we are left to decide its public 
or private character, by comparing the act itself and 
its avowed purposes, with the doctrine and princi- 
ples laid down in the best authorities on the subject. 



166 TRINITY TERM, 5 GEO. IV., J824, 

A very great number of British statutes of much 
more extensive operation in regard of persons and 
property than the act before us, are nevertheless 
private acts. 

Mr. Justice Buller lays it down as the distinguish- 
ing characteristic that public acts of parliament are 
such as concern the whole kingdom, and must be judi- 
cially noticed by the courts, without being set forth, 
and private acts such as do not concern the whole 
kingdom, and therefore must be exhibited to the 
court. 

If, however, the matter be ever so special, yet if 
it relate equally to all, it is a general law and need 
not be shewn; but if it relate only to some particular 
county or parish, or trade, it is special and must be 
set forth. A law that concerns all lords is a general 
law, because it affects the whole property (rf the 
kingdom, which is holden under lords mediate or 
immediate ; but a law that concerns the nobility or 
lords spiritual is but a particular law, because it re- 
lates only to a particular set of persons. A law, 
however, that relates to all spiritual persons is a 
general law, inasmuch as the religion of the kingdom 
is the concern of the whole kingdom. Such are the 
acts, 21 Henry YIII., 13 Eliz., c. 10, and 18 Eliz., 
c. 11; but the 11 Eliz., concerning Bishops' leases, is 
but a private act, for it relates only to the concerns 
of one set of spiritual persons. An act that relates 
to all trades is a general law, because it relates to 
traffic in general ; but an act that relates to any 
one trade, as grocers, butchers, &c., is but a pri- 
vate act. 



TRINITY TEEM, 5 »E0. IV., 1824. 167 

This principle is acted upon by the same eminent 
person in his judicial capacity in the case of Kirk v. 
Nowell, 1 T. R. 

If this be so as regards a whole trade or parish or 
county in England, many of which, we know, em- 
brace the interests and concerns of a much greater 
portion of his Majesty's subjects than the whole popu- 
lation and wealth of this province, how much more 
forcibly must the principle apply to the concerns of 
an obscure association of speculative adventurers, 
and the comparatively few individuals, who have 
foolishly placed confidence in their credit and stabi- 
lity ? Acts of parliament relating to all officers are 
public acts, because they concern the general admin- 
istration of justic^; but an act relating only to parti- 
cular officers is a private act. 

The misapplication, or rather the misapprehension 
of this distinction has heretofore occasioned a differ- 
ence of opinion respecting the 23 Henry VI., c. 9, 
requiring sheriffs to take bail, which has at different 
times, and by different judges^ been considered a 
public and a private act, particularly before the 
statute of Anne, authorising the assignment of bail 
bonds; but the better opinion seems to have been 
that it was always a general law, for although it re- 
lates only to officers of a certain description, yet all 
the King's subjects are within the benefit of it ; but 
without this universal effect, it undoubtedly must 
always have been considered a private statute. 

There is also another mode of rendering a private 
statute public, which is by some recognition of it, how- 



168 TRINITY TERM, 5 GEO. IV., 1824. 

ever slight, by any subsequent public act, either ex- 
pressly or impliedly, confirmatory, or even alterna- 
tive of its provisions or enactments, and on that 
ground, amongst others, it is intimated to us that this 
act should be considered public; this ground however 
entirely fails, for there is no such recogniti(m, nor 
indeed any recognition at all of it by any public act 
of parliament. It is true the act in question contains 
a clause referring to or recognising a previous public 
act of the British parliament; but what is the nature 
and effect of this recognition, it is merely to this 
effect, that this provincial private statute shall not 
alter or repeal that previous public British statute. 

The application of that principle of law is there- 
fore out of the question in the present case. 

The statute before us is entitled " An act vesting 
in the hands of certain commissioners therein named, 
all the stock, debts, bonds and property of the pre- 
tended Bank of Upper Canada, lately established at 
Kingston, for the benefit of the creditors of that insti- 
tution." So far as the title explains the purpose and 
intention of the act, it is no more than would have 
been the title of an act vesting the property of A, B. 
in the hands of C. D. for the benefit of the creditors 
of A. B., and which I imagine no professional man 
would for a moment consider a public statute. 

The preamble states in substance, that certain per- 
sons did, in the year 1819, set on foot an association 
under the style and title of "The president, directors 
and company of the Bank of Upper Canada, and pro- 
cured subscriptions to a considerable amount for the 



TRINIiy TSBM, 6 eiSp. I.V., 1824. 1 g9 

avowed purpose of iraising a joint aud tranifeEal^le 
stpok," upon the cr^edit pf which to ^ssjie bank bills, 
^and ^rry on l^e bijsiness of ba^^ipg, which adyen- 
tureiss afterwards stopt payment of ithgir bijls, ,and 
beqauje insolvent, wljergby a ;great portion of tfee ip- 
habJtonts holding ?their bills ;and notes have been 
defrauded and are likely to be without redress ; with- 
out any reference at present to the truth or ifalJacy 
of the ilatj;er allegation, or to the legality or crimi- 
nality of the association itself, I gee .npthing in Ahis 
description essentially different from the case of any 
insojjveut individual or company, arid his pr their 
speqific creditors, except perhaps tlie very extri^or- 
dinary assertion that the defrauded persons are likely 
to be without remedy. 

This statement, however, whether true or false, 
can make ,uo difference in tjie nature. pf the, transac- 
tion, nor inthe parties, debtors and creditors, whose 
interests and affairs it concerns. Unless iperbaps it 
might have afforded to the legislature a pretext for 
conferring upon this act tb.e character pf a pjlblic 
statute; .this, however,4heyihave not thougjit fit toido, 
nor do I conceive it to be in the power of this court 
to supply the defect, if I am rjght in my conceptipn 
of the dpetrine laid down in alLthe authorities on, the 
subject. 

As t0;the specific enactments and provisions pft)ie 
act, they t do not appear to me to contain or embrace 
any matter whatever that can waiter pr eiilarge .the 
character given to it in its title and preaniblej t^e 
whole having relatioa only to the private eoncerns 
of,certa,iU:Speeiflc, jpsolyeut debtors, ^uditii^iri eredi- 



170 TEINITY TERM, 5 GEO. IV., 1824. 

tors, with whose affairs the community at large have 
no more to do than with the object of the associated 
adventurers, whic*h appears to have been a matter of 
private gain and emolument, undertaken not only 
without authority, but in direct violation of a posi- 
tive and highly penal act of the British parliament. 

I am therefore of opinion that the statute in ques- 
tion is a private act, and as such ought to have been 
spiecially set forth. 

Boui.TON, J. — In this case there are ten points 
reserved, but as the determination on one in favour 
of the defendant will answer the end of arguing the 
whole, it is considered sufiBcient to argue one mate- 
rial point. 

The one selected for that purpose, is whether the 
act of parliament appointing the commissioners is a 
private or public act ? 

Having given this question my best consideration, 
I am of opinion it is a public act. Private acts are 
those which concern only particular things or per- 
sons, of which a judge will not take notice without 
being pleaded. Some acts are called public general 
acts, others public local acts, such as canals, &:c., ch. 
9, a statute for the discharge of poor prisoners, the 
same exception was taken, viz.: — "It is a private 
statute and should have been pleaded." But per Cur. 
This shall be construed to be a public act because all 
the people of England may be interested as creditors 
of the prisoners, so in this case all the people in the 
province of Upper Canada may be interested as ere- 



TRTNITY TERM, 5 GEO. IV., 1824. 171 

ditors of the pretended bank, bringing it most clearly 
within the decision in Lord Raymond. 

Trueb, C, J., says, in the case of Jones v. Axen : 
If the act concerning bishops were tq be determined 
now it would be determined a general act. 

The act in question having embraced the English 
act on the same subject, places the point beyond 
doubt. 



Ex PARTE Lyoxs. 

A certificate from the master, and an afSdavit of the person entitled, stating 
"that he had during bis clerkship done everything required of him," was 
held not sufficient to entitle him to be admitted an attorney of this court. 

Mr. John Lyons applied to be admitted an attor- 
ney of this court. His own affidavit and the certifi- 
cate of service from the attorney with whom he had 
been articled, stated his having entered into articles 
for the time of five years, and that he had always 
been ready during that time to perform any services 
that had been required of him, or to that effect. 

The court considered the certificate and affidavit 
as insufficient. 

Application refused. 



idmi^AB TERM, 5 GEO. IV., iM 



Present : 

The Honourable Chief Justice Powell. 
Mr. Justice Boulton. 
Mr. Justice Campbell. 



Shuter & WiLKiNS V. Marsh & Ux., Executrix. 

Where husband and wife, executrix, are sued, service of process upon hus- 
band only is sufficient as well as in other cases. 

in this case process had been taken out against 
the husbafld and wife as executrix, bdt the husbstnd 
only had been served in time, the process having 
been served upon the wife afte^ the return. 

Washburn moved to set the proceedings aside on 
the ground of irregularity. He contended that 
though in ordinary cases service upon the husband 
aione was sufficient, yet that where the wife was sued 
as executrix it was necessary she should be served 
also. 

That the plaintiff, having undertaken to serVe the 
process upon the wife, should have served it in time. 

Boulton, George, denied that there was any dis- 
tinction between a wife sued as executrix or other- 
wise, there being no authority to that effect, and the 
principle being the same in both cases, of which 
opinion was the court. 

Application refused. 



MICaaEEMAS' term; 5r©E0. FT., 182C X7S^ 

LoaAN r. SilGOREi. 

Tia» court win n&fe order s&tisfawtioa ta tl? entered upon aJatojsattT^eBt 
payment of interest. 

Washburn had obtained a rule last Trinity Term 
to shew cause why, upon payment into court of the 
sum of £126 13s. 8d., balance of the judgment' in 
this cause, satisfaction should not be entered on the 
roll, and why, in the meantime, all proceedings 
should not be stayed on the writ oi fieri facias issued 
therein. 

A judgment foT the sum of £1861 I7s. lid. had 
in the year 1812 been entered of record in this 
court by the plaintiff against the defendant. 

The affidavit in support of this application stated 
that the defendant had paid to the plaintiff u'pon this 
judgment the sum of £1736 14s. 3d. 

The affidarifs against the application stated that 
the deponent, who was the agent of the plaintiff, had 
always considered and intended that the payments 
made by the defendant were in satisfaction of inter- 
est accrued as well as the principal, until both prin- 
cipal and interest should be fully paid, and that one 
payment in particular, viz., 400 acres of land valued 
at £150, was by the defendant tendered to the de- 
ponent, and by him accepted in part satisfaction of 
the interest on the subsisting debt j further, that an 
agreement or agreements had taken place between 
the deponent and the defendant as to what period 
some particular payments should draw interest for. 

Thfe amount due upon a calculation bf principal 
and interest amounted to £821 17s. 3d. 



174 MICHAELMAS TBBM, 6 GEO. IV., 1824. 

Robinson, Attorney-G-eneral, shewed cause.— The 
judgment upon which satisfaction is required to be 
entered by the defendant in this case is dated 1812. 
A number of payments have been made upon it, but 
the agent of the plaintiff has insisted and the defend- 
ant has agreed that those payments should be placed 
to account of the interest, and even had there been 
no agreement to that effect, natural justice would en- 
title him to it. He was entitled to interest upon the 
account upon which the judgment was founded, and 
a fortiori he must be entitled to interest upon the 
judgment itself. 

A jury would give it by way of damages in an 
action upon the judgment, and it would be unjust 
that the plaintiff should be deprived of it by an ap- 
plication of this sort. 

The right of a plaintiff to interest upon a judgment 
is clearly established in Saunders, (a) where it is 
laid down that the court itself will, with the consent 
of the plaintiff, tax interest by way of damages, and 
if, by a direct exercise of authority, they will enforce 
the payment of interest, they cannot, by granting an 
application of this sort, deprive a plaintiff of that 
which he would be entitled to by the verdict of a 
jury, or by the summary interference of the court. 

The late provincial statute, too, I consider, has a 
retrospective operation {b) not confined to judgments 
obtained since its enactment. 

The right of plaintiffs to interest upon judgments 

(a) Holdipp T. Otway, 2 Saund. 105. (i) Provincial Statute. 



MICHAELMAS TERM, 5 GEO. IV., 1824. 176 

is alike laid down in the term reports, (a) in East, (b) 
in Maule and Selwin, (c) and in Atkins, (d) 

Washburn, contra. — In actions upon bonds there 
is no doubt but that interest may be allowed upon 
the judgment without the intervention of a jury, but 
there is no case of interest being allowed by the 
court upon judgments in actions of assumpsit without 
a verdict. The case cited from Saunders was one of 
debt upon bond, and in other cases interest was con- 
sidered as matter of consideration for a jury. 

The passing of the late provincial statute direct- 
ing sheriffs to levy interest upon judgments, clearly 
shews that it was not considered that a plaintiff was 
before entitled to it. If the plaintiff is entitled to it 
in this case why does he not levy it ? 

If the counsel on the other side could produce a 
report where interest has been given by the court 
in judgments upon assumpsit, I should not contend 
for an entry of satisfaction in this case, but none of 
the cases cited are against this application. 

Attorney-General, conti'a. — The counsel on the 
other side allows that interest would be in the dis- 
cretion of a jury, and yet by this application he 
would deprive us of that right. 

The new act is to facilitate the recovery of inter- 
est — to enable a plaintiff to recover his due at a less 
expense, and rather shews that he had a former 
right than creates a new one. 

(a) Blackmore v. Flemming, 7 T. R. 446. (6) M'Clure v. Dankin, 1 East 
436. {c) M. and S. (d) Godfrey t. Watson, 3 Atkins 517. 



176 MICHAELMAS TERM, 5 GEO. IV., 1824. 

The observation that the oases wMeh relate to in- 
terest do not apply in the present isnot warranted, for 
Lord Keni/on has declared in the case of M'Glure & 
DoifflMo, which I have before dted, that he saw no 
difference aai this respect between our own and fo- 
reign judgments, and tbe latter are k express teamis 
icalled assumpsits in the books. 

If natural justice as well as legal ideeisions^streaigth- 
enedas in this case by the parties' agreement^^ve 
us a right of interest, this applicatiaa cannot jbe, sus- 
tained. 

'Oeief 'Justice. — It appears to me that if a party 
defendant applies to have satisfaction entered upon 
a judgment, this court may say he should pay in- 
terest; and I am also of opinion that the court can- 
not be called upon to order an entry of satisfaction 
where the nature or amount of payments are disputed 
by the parties. 

Per Curiam.— BtMle discharged. 



fBBiOK V. Nelson. 

An affidavit to hold to bail stating tbat the defendant is indebted to the 
plaintiff npon a certain bond or obligation is insufficient. 

The affidavit to hold the defendant to bail in this 
cause stated that the defendant was indebted to the 
plaintiff in £135, upon a certain bond or obligation. 

JRidoutjnoYed. to cancel ihe bail-bond and to enter 
common bail, the, affidavit being insufficient as not 



MICHAELMAS TERM, 5 GEO. IV., 1824. 177 

stating that the sum sought to be recovered upon the 
bond was due and payable, (a) 

Per Curiam. — Application granted. 



BiNKLBY V. DeJARDINE. 

An application for a judge's certificate that a cause is a proper cause for a 
special jury, must be made immediately after the trial on the same day 
the cause is tried. 

This cause was tried by a special jury at the as- 
sizes for the Gore District. The jury retired at ten, 
o'clock at night to consider of their verdict ; some 
time afterwards they returned to court in the absence 
ol the plaintiff's counsel and gave a verdict in his 
favour. ' 

On the following morning no business having been 
entered into, the plaintiff's counsel at the opening of 
the court moved for the judge's certificate "that the 
cause was a proper one to be tried by special jury." 

The Chief Justice refused to grant the certificate, 
not being, as he considered, authorised by the statute 
so to do. (a) 

Robinson, Attorney-General, now applied for a 
certificate or an order upon the master to allow him 
his costs of striking the special jury. 

He referred to the court, whether, although the 
statute directs the application to be made immediately 
after the trial, those words might not by a liberal 

(ffl) 4 M. & S. 330. (i) Provincial Statute 48 Geo. Ill,, ch. 13. 

23 



178 MICHAELMAS TEEM, 5 GEO. IV., 1624. 

constructicyh be ooHsidered to intend before any other 
trials were gone into. 

The court considering the words of the act as not 
capable of extension, concurred with the decision of 
the judge at nisi prius. 

Application refused. 



V. HlTGHES. 



Where a plaintiff hag special counts in Ms declaration, bat abandons tbem 
and recovers upon counts within the competence of a district court the 
court will order judgment to be entered on those counts only. 

In this case the plaintiff had declared upon a special 
agreement, an account stated, and other common 
counts. 

The special count had been abandoned by the 
plaintiff at the trial, and he had taken a general ver- 
dict for £20 8s. l^d. 

Mr. Justice Campbell, who tried the cause, had re- 
fused to grant a certificate under the provincial 
statute (o) to enable the plaintiff to receive the costs 
allowed in this court. 

Such costs would have been taxed by the master 
on view of the proceedings, the verdict appearing to 
be in a special action above the competence of a dis- 
trict court; but, 

^dutton, Solicitor-Greneral, had obtained a rule to 
show cause why the verdict should not be entered 

(a) 58 Geo. III., oh. 4. 



MICHAELMAS TERM, 5 GEO. IV., 1824. 179 

upon the common counts agreeable to the judge's 
notes, no CTidence having been given upon the special 
counts. 

Mmaulay^ shewed cause. — He contended that the 
plaintiff by a ver4ict upon an account stated might 
recover King's Bench costs. 

That the district court act, which confines its juris- 
diction in sums above £15, to accounts liquidated, is 
to be considered to intend those settled by note or 
some express acknowledgment of the parties, as a 
certain price for a piece of goods. The principle 
does not apply to accounts stated where there may 
be £80 upon one side and £120 upon the other, for 
though parties may have stated their accounts, they 
may contend against and correct inaccuracies, as l^id 
down in the terra reports, {a) 

That the plaintiff having brought his action bona 
fide upon the agreement, should not be deprived of 
his costs because he had been obliged to abandon it 
perhaps upon some nice construction upon the Statute 
of Frauds. 

Boulton, Solicitor-Greneral, contra, contended that 
in this case the plaintiff having given no evidence 
upon, and having abandoned his special counts, the 
court could not give judgment upon them. 

That the defendant was entitled to have the ver- 
dict entered upon those counts to which evidence |ad 
been given, not as a matter of grace, but as a matter 
of right. 

(a) 1 T. B. 42. 



180 MICHAELMAS TERM, 5 GEO. IV., 1824. 

An action upon an account stated is clearly of the 
competence of the district court, although it may be 
contested, and so may the amount of a note. 

Macaulay, contra.-The object of this application 
is to deprive the plaintiff of costs which he is equita- 
bly entitled to; looking at that object the court will 
refuse the application. 

As I have brought authorities to shew that ac- 
counts stated may be opened, I consider that it may 
be inferred that an account stated if above £15 need 
not be brought into the district court. 

The defendant should have insisted upon the right 
now applied for at the trial. As the granting it 
would be attended with injury to the plaintiff, it 
ought not to be allowed at this stage of the proceed- 
ings. 

Rule absolute. 



Mead v. BACoiir, 

A rule to plead is necessary in bailable actions. 

Rolph had obtained a rule nisi to set the interlo" 
cutory judgment signed in this cause aside for irre- 
gularity, the same having been signed for want of a 
plea — no rule to plead having been entered. 

Robinson, Attorney-General, shewed cause. — He 
contended that the late act for regulating the pro- 
ceedings of the court of King's Bench, had dispensed 
with the necessity of giving a rule to plead. 



* 



MICHAELMAS TEEM, 5 GEO. IV., 1824. 181 

That statute {a) directs that in all actions or suits 
where the defendant had appeared, the plaintiff or 
his attorney should, after filing a declaration in the 
oflSce from which the writ issued, and service of a 
copy thereof on the defendant by a demand in 
writing, call for a plea, and that if after the expira- 
tion of eight days from the service of such demand 
no plea is filed the plaintiff may sign judgment. 

That though these directions of the statute were 
given in that part of it which more particularly ap- 
plies to actions not bailable, yet there was no reason 
to require a rule to plead more in those actions that 
were bailable than in others. 

The statute intends to take away the necessity of 
the rule to plead in both cases, as it could only have 
been taken out at the principal ofi&ce, a circum- 
stance very inconvenient in the outer districts. 

That if a rule to plead was considered as necessary, 
it would follow that a defendant in a bailable action 
would not be entitled to a demand of plea of eight 
days, which was a beneficial arrangement in his 
favour. 

Ralph, contra, contended that in this point of 
practice we must be governed by that of the King's 
Bench in England, it being a case not provided for 
by our own statute, the regulations of which respect- 
ing the time for pleading are expressly confined to 
actions not bailable. That in all cases not provided 
for by our own statute, we are referred to the 
English practice by the rule of this court. 

(a) ProYincial Statute, 2 Geo. 4 ch. 5. 



182 MICHAELMAS TERM, 5 GEO. IV., 1824. 

As to the inconvenience of taking out a rule to 

plead from the office in York, that has been remedied 

by rale of this court. 

Rule absolute. 



Hathaway v. Malcolm. 

ETidence of a profiiissofy note, although Tarying from that set out in the 
declaration, Tras considered as sufficient to support the common counts. 

This was an action by the payee against the maker 
of a promissory note, and tried before the Chief Jus- 
tice at the assizes for the London district. 

There was a material variance at the trial between 
the note as declared upon and given in evidence. 

The plaintiff closed his case with the proof of the 
note, and insisted that such proof was sufficient to 
entitle him to a verdict upon the money counts, and 
took a verdict accordingly for the amount of the note 
proved, subject to the opinion of the court. 

Robinson, Attorney-General, now contended that 
a nonsuit should be entered. 

That the note alone was not sufficient evidence of 
the money counts, but that the plaintiff, after failing 
upon the note count; should at least have proceeded 
to give such evidence as would have shewn that it 
was given for some of the considerations stated in 
the declaration. 

He cited a case from BuUer's nisi prius (a) where 
Eyre, Chief Justice, after demurrer and judgment 

(a) Randolph t. Regendon Bull N. P. 137 



MICHAELMAS TERM, 5 GEO. IV., 1824. Igg 

for the defendant upon the note count, refused to al- 
low the note to be given in evidence at the assizes 
to support the count for money lent. 

That the present case was a fortiori in favour of 
the defendant, as the plaintiff might set out his note 
properly in a fresh action, whereas in the cases 
cited he had no remedy ; he also cited Levinz. 

Rolph, contra, contended, that proof of a note 
being given by the defendant to the plaintiff, though 
varying from that set out in the declaration, was 
sufficient to entitle the plaintiff to a verdict upon the 
account stated or other money counts. 

That as before the statute of Anne it was oompie- 
tent to a plaintiff to give a note as evidence upon 
those counts, so it might ekarly be done now, as that 
statute did not take away any remedy which a plain- 
tiff had before its enactment, but gave a concurrent 
one. (a) 

That the principle reason for inserting the common 
counts in the declaration, was to enable a plaintiff to 
give his note as evidence upon those counts in case 
he should from variance or other cause fail to recover 
upon the note count. 

That it is laid down by Lord ElUnbormgh, that in 
an action by the payee against the maker of a note 
the note itself is evidence of money lent ; and in 
Bayley, that it is evidence of money paid by a 
holder to the use of a drawer, and in the same author 

(a) Storey t. Atkins, Strahan 719. 



184 MICHAELMAS TERM, 5 GEO. IV., 1824. 

that it is evidence of money had and received by the 
drawer to the use of the holder, and that an accept- 
ance is evidence of money had and received by the 
acceptor to the use of the drawer, (a) and in the case 
of Israelv. Douglas (J) it is laid down that an accept- 
ance is evidence of an account stated. 

That these determinations are decisive in the pre- 
sent case, as it is well known that the maker of a 
promissory note and the acceptor of a bill of ex- 
change are upon the same footing. 

That in many of the cases it has been decided that 
the note was evidence without being declared upon, 
and the reasoning is stronger in favour of a plaintiff 
where his note, as in the present case, has been de- 
clared upon. 

Per Curiam. — Application refused. 



McLean v. Gumming. 

The rule of this court requiring the name of an attorney to be endorsed upon 
a cognovit does not apply where an attorney is plaintiff. An affidavit not 
considered as inefficient because the place of taking it was omitted in the 
jurata. 

Motion to stay proceedings upon a judgment en- 
tered upon a cognovit — actionem. 

Boulton, Solicitor-Gi-eneral, objected that the name 
of a practising attorney had not been endorsed upon 
the cognovit at the time of taking it, and that such 
endorsement was not stated in the affidavit of execu- 
tion, agreeable to rule seventh of this court. 

(a) Bayley on Bills. (5) 1 H. B. 239 ; 13 East. 100. 



MICHAELMAS TERM, 6 GEO. IV., 1824. 185 

The court overruled this otyectiou, observing, that 
the plaintiff being an attorney was, sufficient ; the 
reason and intention of the rule being to prevent 
persons from taking cognovits who were not amena- 
ble to the court. 

The Counsel also objected to the reading an affida- 
vit because the place where the same was taken had 
not been inserted in thejurata, which he contended 
was necessary as had been clearly determined. 

That to dispense with this rule of practice would 
oiily be to perpetuate inaccuracies from year to 
year. 

On the latter point the Attorney-General con- 
tended that in cases where persons are called upon 
to perform a duty, it is to be prima facia supposed 
that they have performed it properly. The court 
here would not suppose that the commissioner had 
exceeded his authority, by administering an affidavit 
in a place where he had no right to do so. The 
court here knew all the commissioners, which made 
the case different to that of a commissioner in 
England. That the principle in the case of Maule 
and Selwyn (a) might well be applied in this. That 
it had not been usual in this court to examine the 
jurata of affidavits with that nicety which had lately 
taken place in England, nor were we bound to alter 
our own practice to make it conform to an over- 
strict regard to the niceties of practice there. 

The court overruled the objection and allowed thie 
affidavit to be read, considering the principle of the 

(o) 1 M. and S. 

24 



186 MICHAELMAS TERM, 5 GEO. IV., 1824. 

case of an affidavit sworn before a Chief Justice in 
Ireland where his jurisdiction had not been inserted 
in (hejurata, and which was allowed notwithstanding 
the objection to be read in England, as sufficient to 
warrant the decision. 

Per Curiam. — Application refused. 



Madill v. Small, one, &c. 

frooeedings against an attorney set aside, the rule to plead having been 
given before the bill served. 

Macaulay had obtained a rule to shew cause why 
the assessment of damages and interlocutory judg- 
ment in this cause should not be set aside for irre- 
gularity with costs. 

The defendant had been proceeded against as a 
privileged person. The bill had been filed on the 

10th of , the copy had been served on the 13th. 

but the rule to plead had been entered on the lOtb 
before the service of the bill. The interlocutory 
judgment was signed upon these proceedings for 
want of a plea. No appearance had been entered 
according to the statute. 

The court considering these proceedings as irregu- 
lar, set the interlocutory judgment aside. 



Cross and Fisher v. Cronther. 

Costs allowed by this court for not proceeding to assessment of damages 
pursuant to notice. 

Smith obtained a rule to show cause why the plain- 
tiff should not pay costs for not proceeding to assess- 
ment of damages pursuant to notice. 

The rule was afterwards made absolute without 
argument. 



[187] 
HILARY TERM, 6 GEO. IV., 1825. 



Present : 

The Honourable Chief Justice Powell. 
Mr. Justice Boulton. 
Mr. Justice Campbell. 



Brown v. Smith. 



Where by the operation of proTincial enactments a plaintiff is unable to 
give a proper date to the notice at the foot of a ca. re., a general notice 
to appear on the first day of the term was held sufEoient. 

Macauhy moved to set aside the proceedings in 
this case upon the ground that the notice to the de- 
fendant to appear was insufficient. 

It required him to appear on the first day of the 
then next (the present) Hilary Term, without speci- 
fying the day of the month agreeable to the form 
given by the provincial statute for regulating the 
proceedings of the Court of King's Bench. 

The statute passed 6 G-eo. IV., provides for the 
establishment of the present Hilary Term, and for 
remedying defects in process by the following sec- 
tion: {a) "And be it further enacted, that in this 
present year the Term of Hilary shall commence on 
Monday, the 17th day of January, and end on Satur- 
day of the week ensuing, any law to the contrary in 
anywise notwithstanding, and that any writ, process, 
entry or proceeding, which hath been or shall be 

(a) 2 Geo. IV., ch. 1 & 4 ; 6 Geo. IV., ch. 1 & 3. 



188 HILARY TERM, 6 GEO. IV., 1825. 

issued, h^d or made before the said 17th day of Janu- 
ary, iu which the Term of Hilary during this present 
year or any return day thereof is described and set 
forth otherwise than according to the provision in 
this clause contained, shall nevertheless be valid and 
effectual, and the commencement and end of such 
Term of Hilary and other return day therein men- 
tioned, in any such writ, &c., shall with respect to 
such writ, &c., and all subsequent proceedings there- 
on, be deemed and takeij to be as it should and ought 
to have been according to the periods in this clause 
appointed for the commencement and duration of the 
said Term of Hilary." 

The counsel submitted to the court, whether a de- 
feet so obviously contrary to the provision of our 
owp statute, as well as the English practice, could be 
cured by the provision in the late act ; he considered 
that had some date been mentioned, though an erro- 
neous one, it might have been cured by the words of 
the late statute, but that no date being stated in the 
notice, was a. defect neither contemplated or aided 
by the statute. 

Chief Justice. — The defect has arisen e.-e necessitate 
rei. The plaintiff adopted that mode of specifying 
the return of the writ, because he had no other course. 
I consider that by a fair and liberal construction of 
this statute, it may be considered as remedying the 
defect in this process. 

Per CMna??i.~ Application refused. 



HILARY TURM, 6 »EQ. IV., ia2g. 189 

G-ARDNBR V. BURWELL AND JUSTIOBS. 

When magistrates commit a party upon a general charge of felony given 
upon oji.th, they will not be liq,ble to an action of trespE^^s, althoiigh t^C) 
facta sworn to in order to substantiate that charge, may not in point of 
Hw gupport it. 

This was an action of trespass,, in which the decla^ 
ration stated that the defendants, justices of the 
peace, on the eighth day of October, 1822, with force 
and arms made an assault on plaintiff, and under a 
false and pretended charge made before them by one 
James Trainer, against plaintiff, for feloniously steal- 
ing a saddle, and by them as such justices, &c., know- 
ingly and oppressively heard and received and pre- 
tendingly credited, caused plaintiff to be apprehended 
by one James Tafif, a constable, and several other 
men his assistants, without just or probable cause, 
and to be brought before defendants as justices, and 
that afterwards under colour of the said false chaises, 
defendants did unlawfully and oppressively without 
examining on oath any witness or accuser or prose- 
cutor in the presence of plaintiff, and without read- 
ing or causing to be read in the hearing of plaintiff 
any deposition or evidence taken before them upon 
the charge aforesaid, and without due examinatioii of 
the plaintiff, give and order him into the custody and 
charge of the said James Taff, and one James Young, 
as constables, to be conveyed to the common gaol 
for the false and pretended cause aforesaid, and then 
and there caused the plaintiff to be forcibly, against 
his will and the law of the land, carried and conducted 
in custody of said James Taff and James Youpg a 
great distance, fifty miles, to the town of Vittoria, and 
there to be detained two hours in custody till plain- 
tiff was forced and obliged for his deliverance to find 
and procure bail for his appearance before the next 



190 HILAEY TERM, 6 GEO. IV., 1825. 

court of Oyer and Terminer to be held in and for 
the district of London, whereby plaintiff was hin- 
dered in his business and was put to great trouble 
and expense, and lay out £10, about his imprison- 
ment and in the procuring of bail and his discharge 
from the said imprisonment. Plea, not guilty. 

It appeared in evidence at the trial before the 
Chief Justice at the last assizes for the London dis- 
trict, that the plaintiff being liable to statute labour 
on the highway, had, under the authority or conniv- 
ance of one of the overseers, performed his statute 
labour on a piece of road convenient to himself ; and 
that moreover he had some undue pleasure or grati- 
fication in doing so, that he might evade the statute 
labour which he ought to have performed elsewhere 
under the direction of the defendants as magistrates. 
That Trainer, another overseer of highways, had or- 
dered the plaintiff to work upon another portion of 
the roads, which he had refused; and that upon com- 
plaint to the defendants as magistrates, plaintiff was 
fined five shillings under the statute, and two shil- 
lings and six pence costs, and execution issued to 
Trainer, as constable, who proceeded to plaintiff's 
house, (plaintiff being absent,) and seized a waggon, 
which, being put up to sale, the constable bought 
himself for six pence, and sold to a bystander for a 
shilling, through whom the plaintiff again received 
his waggon. This sale not producing the necessary 
sum, the constable took a saddle of plaintiff, and 
offered it for sale. The constable himself bought the 
saddle for seven shillings and six pence, and carried 
it to his house. 



HILARY TERM, 6 GEO. IV., 1825. 191 

Plaintiff complained, and the defendant Burwell 
told Trainer, the constable, to give him back his 
saddle if he performed his statute labour ; and the 
other defendant Patterson, being in company with 
the plaintiff at a public house, proposed (as was al- 
■ leged by one witness) that if he would call for some 
liquor he should have his saddle again. 

Another witness, however, said that there was no 
bargain respecting the saddle at that time. 

Some days afterwards the plaintiff went to Train- 
er's house in his absence, and notwithstanding his 
wife's objections took away the saddle. 

Trainer then went before the defendants and made 
oath that the plaintiff had feloniously stolen the saddle. 
That a warrant issued and the arrest and imprison- 
ment followed. It further appeared in evidence that 
the plaintiff when brought before the magistrates 
behaved in a very violent and indecent manner. 

The defendants' counsel objected at the trial that 
upon this evidence the action could not be sustained 
against the magistrates, they having proceeded upon 
a charge of felony sworn to before them. That at 
any rate the cause of action alleged was the subject 
of an action on the case and not of trespass, and the 
Chief Justice being of that opinion, offered a nonsuit, 
which was declined by his counsel. 

Robinson, Attorney-Greneral, having obtained a 
rule to shew cause why the verdict should not be set 
aside and a nonsuit entered — 



192 HILARY TEEM, 6 GEO. IV., 1825. 

BoMtoin, shewed cause. — He contended that it 
was not the legality or illegality of the first act of 
the magistrates nor their design that gave character 
to the action whether trespass or case j but the feet 
of the injury being immediate to the person of the 
plaintiff or consequential, as laid down in Leame 
V. Bray, {a) That in this case the immediate injury 
was the arrest and imprisonment ; that it was ana- 
logous to seduction and crim. con., in which cases 
trespass lies. 

That had the magistrates acted under a bona fide 
error,- the false accusation of Trainer would have so 
far excused them that the plaintiff could only have 
had an action on the case for such portion of the 
Wrong as might not be excusable by the information. 
But that the defendants being privy to the false ac- 
cusation, and well knowing that no felony was com- 
mitted, they were wrong doers. That an accusation 
false within the knowledge of the magistrates is as 
no accusation ; and that, therefore, trespass only lay 
as laid down in the case of Morgan v. Hughes, (J) 
where Mr. Justice Buller says, that where it is stated 
on the record that a warrant is illegally granted, it 
never was doubted that trespass was the proper 
remedy. That although it is laid down in Windham 
V. Clere (c) that though the information l5e false yet 
the justice is excusable, in no case will it be found 
to say that an information false within the knowledge 
of the magistrate excuses him, as may be collected 
from the case of Lowther v. Eadnor, {d) as well as 
from that last cited ; from both which cases it may 
be inferred, that the error or ignorance of the magis- 

(a) 3 East. 593. (6) 2 T. E. 231. (c) Cooke, Eliz. {d) 8 East. 119. 



HILARY TERM, 6 GEO. IV., 1825. 193 

trate must be a bona fide error, or positive ignorance 
of facts that can excuse him. 

Robinson, Attorney-General, contra, contended, 
that the magistrates were justified by the information 
on oath laid before them, although persons well ac- 
quainted with the nice legal distinctions between a 
felonious taking and trespass, might perhaps not have 
granted a, warrant in this case. 

That it was well known, that from a want of know- 
ledge of those distinctions persons were sometimes 
proceeded against and tried for larcenies where the 
judges did not consider that the facts adduced were 
sufficient to constitute a felony, and that without any 
imputation upon the counsel for the Crown who had 
not always an opportunity of investigating criminal 
accusations until the day of trial. 

That the offer to return the saddle, which had been 
insisted upon on the defence, did not affect the case, 
as it was made (if at all) before any felony had been 
committed. 

That the positive oath of Trainer was sufficient to 
excuse the magistrates from a charge of trespass, 
unless, perhaps, some collusion could have been 
charged and proved against them, which had not been 
done; and that, if any consequential injury had arisen, 
the action should have been case and not trespass. 

That it had been brought without precedent and 
could not be supported. 

That the distinction between trespass and case, is 
clearly laid down by Mr. Justice Ashhurst in the 

25 



194 HILAKY TEEM, 6 GEO. IV., 1825. 

case of Morgan v. Hughes, before cited; he there 
says, that where an immediate act of imprisonment 
proceeds from a defendant the action must be tres- 
pass ; but that where it proceeds from a person in 
consequence of the information of another, case is 
the proper remedy. 

That the learned judge's distinction, which was 
assented to by the whole court, governs the present 
case ; and that the law on this head is considered by 
Lord Ellenborough as settled accordingly in Leame 
V. Bray, (a) 

That if a complainant therefore makes a positive 
charge upon oath, the magistrate cannot be sued in 
trespass however liable the prosecutor may be to 
that action. 

That the want of examination in the presence of 
the accused, though irregular, could not make the 
supposed injury a trespass. 

That it is not pretended by the declaration, that 
the magistrates had solicited or induced Trainer, the 
prosecutor, to make the charge — such an allegation 
laid and proved might have altered the case. 

That persons possessed of much greater legal in- 
formation than justices of the peace usually are, 
would have been justified in acting as the defendants 
had, and that whether their opinion as to felony or 
no felony was erroneous or not, trespass could not lie. 

Baldwin, in reply, contended, that the counsel for 

(a) 8 East. 198. 



HILARY TERM, 6 GEO. IV., 1825. 195 

the defendant had not answered his case, which was 
one where magistrates, defendants, knew that the 
facts before them did not support the accusation. 

That where they proceed against a person for 
felony in a case where they must have known from 
circumstances that no felony had been committed, 
they should be considered as trespassers. 

And that the scienter of the magistrates is sup- 
ported by the verdict. 

Campbell, J. — This is an action of trespass brought 
by the plaintiff against the defendants as magistrates 
for having, as he alleges, by their warrant unlawfully 
imprisoned him; and the present motion on the part 
of the defendants is for a nonsuit, on the ground that 
such action will not lie, they having acted in a mat- 
ter within their jurisdiction, and upon complaint made 
to them on oath. Upon reference to the evidence, 
it appears that the complaint was, that he, the plain- 
tiff, had stolen a saddle, such charge upon the face 
of it certainly implies a felony, of which the justices 
had jurisdiction, and fully justified them in issuing 
their warrant to apprehend the supposed felon, in 
order that the complaint might be farther investi- 
gated, and, if on such investigation the magistrates 
were satisfied that the charge of felony was well 
founded ; that is, if it appeared to them upon exami- 
nation, that the manner of taking this saddle was 
such as shewed a felonious intent of privately steal- 
ing, it then became their duty to commit the person 
so charged in order to be tried for the felony, and 
for so doing neither trespass nor case would lie 



196 HILARY TEBM, 6 GEO. IV., \825. 

against them; but it is to be reeoUeeted that aaagis-. 
trates and not complainants, are the legal judges of 
the offence complained of, and if they mistake the 
law, they do so on their own responsibility, and how- 
ever excusable in a crimina,! or penal proseoi^tion, 
they become liable to action by the party grieved, 
and such action would be case and not trespass ; but 
if it had appeared in evidence on the trial of the pre- 
sent action that those magistrates at the time of the 
investigation of the complaint before theni were made 
sufficiently aware that the circumstances of the taking 
of this saddle were such as in law could amount only 
to trespass and not to felony, either as privately 
stealing or open robbery, by a forcible talking and 
putting in fear, and with such knowledge, wilfully 
and maliciously imprisoned the plaintiff, then this 
action would undoubtedly lie, and I should not feel 
myself justified in granting a nonsuit. I am, I be- 
lieve, sufficiently upheld in this opinion by the doc-^ 
trine laid down by Lord Ellmborough in delivering 
the unanimous decision of the court in the case of 
Lowther v. Lord Radnor, (a) stating in substance that 
trespass lies not against magistrates acting upon a 
complaint on oath in a matter within their jurisdic- 
tion, although the real facts of the case might not 
have supported such complaint, if such facts were not 
laid before them at the time : it had certainly been 
stated to this court, and impressed upon my mind, 
erroneously it seems, that such was the case in the 
present instance, but on reference to the Chief Jus- 
tice's notes, it does not appear that any evidence of 
the kind was given at the trial. I am therefore con- 
strained to agree to a nonsuit, as in the absence of 

(a) 8 East, 



HILAEY TEEM, 6 GEO. IV., 1825. 197 

such testimony trespass will not lie against magis- 
trates, which otherwise would, as clearly laid down 
in all the authorities, of which it may be sufficient 
only to cite that of Morgan v. Hughes, (a) where 
Ashhurst and BuUer, justices, sufficiently state the 
distinction between trespass and case in matters of 
this kind, adding, " it had neyer been doubted that 
trespass was the proper remedy where a warrant 
had been illegally granted." 

Per Curiam. — Eule absolute for nonsuit. 



The King v. Nash. 

Where a vessel is seized as not being British built under the provisions of 
7th and 8th of WiUiam III., the onus probandi lies upon the claimant, i. 
e., to recover it he must prove that the vessel in question was built at a 
British port. 

The vessel belonging to defendant had been seized 
as foreign built under the statute 7th and 8th Wm. 

m. 

A verdict had been taken for the Crown at the 

assizes for the district, subject to the opinion 

of the court upon the following point, viz.: whether 
the onus probandi lay upon the Crown or upon the 
defendant. 

Washhurn, for the defendant, contended that there 
being no provision in the statute of William to throw 
the onus upon the defendant, this case must rest upon 
the general principles of the common law, and that it 
was therefore incumbent upon the Crown to prove 
the negative, viz.: that the vessel seized was not 

(a) 2 T. R. 



198 HILARY TERM, 6 GEO. IV., 1826. 

British built, which would be effected by shewing 
that she was built in foreign parts, e. g., in the United 
States. 

That this was agreeable to the doctrine laid down 
in Williams v. The Bast India Company, (a) viz.: 
that the law will not presume a party to have been 
guilty either of a criminal act or culpable neglect, 
but that such must be proved by evidence although 
that evidence must necessarily be negative ; and to 
that in the case in which it had been determined, that 
proof of a clergyman not having read the thirty-nine 
articles must come from a person proposing to estab- 
lish that negative. That as the provincial statute 4 
G-eo. IV. had in case of the seizure of goods provided 
that the onus should lie on the defendant, that provi- 
sion was prima facie authority against the Crown in 
this case. 

Boulton, Solicitor-Greneral, on the part of the 
Crown, insisted, that there was not occasion for a 
statute to lay the onus upon the defendant in this 
case, the common law being sufficient for that pur- 
pose, as under the game laws a person must shew 
himself to be qualified. 

The defendant traverses the boat Fanny being 
foreign, it is therefore incumbent upon him to shew 
that she is not so, by proving her to be British built. 

That the defendant claiming this boat after a seizure 
is not sufficient to entitle him to restitution ; he must 
prove his right, his whole case. 

(o) E. R. 193. 



HILARY TERM, C GEO. IV., 1825. 1^9 

The defendant himself is not charged with a crime; 
this is a proceeding in rem. The property has be- 
come derelict — is seized by the officers of the Crown, 
and the defendant to get it restored must shew that 
it is not a subject of seizure. 

The proceeding resembles that of taking lands to 
which there is no heir; there the lands being once 
vested in the Crown, any person claiming must shew 
his title. 

That this point had been determined in the case 
of the King v. McCartney in Michaelmas Term, 1822. 

Per Curiam. — Judgment for the Crown. 



McLauglin v. McDougal. 

The filing the roll with the clerk of the Crown or his deputy, is a sufficient 
entry of the issue upon record to enable a plaintiff to move for judgment 
as in case of a nonsuit. 

Boulton, Solicitor-G-eneral, had obtained a rule 
nisi in this cause for judgment as in case of a non- 
suit upon an affidavit, stating that the issue roll had 
been filed in the office of the deputy clerk of the 
crown and notice of trial given in the year 1822, 
and a second notice in 1823, but that the plaintiff 
had not proceeded to trial. 

Ridouty shewing cause, contended — 1st. That this 
affidavit was insufficient ; that it ought, agreeable to 
the forms in the books of practice, to state that issue 
had been joined. 2nd. That in this case the issue 
had not been entered agreeable to the course laid 



200 HILARY 1)ERM, 6 GEO. IV., 1825. 

down in the books of practice, that is to say, by en- 
tering the whole of the proceedings on record and 
carrying them into the office ; and that until this was 
done by the plaintiff, either voluntarily or in conse- 
quence of his being ruled to that effect, the defendant 
is not in a situation to move for judgment as in case 
of a nonsuit, and cited 4 T. R. 196, and 1 DoHg. 197. 

Boulton, Solicitor-Grcneral, contra, contended that 
the affidavit was sufficient, that the roll being filed 
with the clerk of the Crown or his deputy was a suf- 
ficient entry of the issue, and, 

Of this' opinion was the court ; the rule was, how- 
ever, discharged upon the plaintiff's undertaking to 
go to trial and pay the costs. 



Brookfield v. Sigtje. 

Smallness of damages no objectioa to a new trial where a verdict la mani- 
festly contraiy to evidence and the judge's opinion. A nonsuit cannot 
be moved for in bank, unless a point has been reserved at nmprius. 

This was an action of trover tried at the last as- 
sizes for the Niagara District. It appeared in evi- 
dence that the defendant, a constable of the district, 
had exposed to sale by auction a yoke of steers 
which he had taken in execution under a process of 
the court of requests. The plaintiff bid them off, 
but not having the money to pay for them immedi- 
ately, it was agreed between him and the constable 
that they should be deposited in the hands of some 
third person for a short time until the plaintiff could 
procure money to pay for them. 



" HH^ARY 'TEEM, B GEO. 3V., ISfif). 201- 

. 'Plsriiatiff some time after wards offerfed a part of 
..the money, whiicfe the eonstablp refused to tafce, and 
rersold the steers. 

The jury, coiiti*a.ry to the eharge of the judge, 
f#Und a verdict of £6 10s. No point was reserved 
at the trial. 

Washburn iMid moved that the verdict be set aside 
or a nonsuit entered ; but it being determined by 
the court that a nonsuit could not be moved for un- 
less a point had been reserved at the trial, he iad 
insisted upon and obtained a rule msiiex a new trial 
alone. ' 

Macaulay shewed cause, he contended — 1st. Ihat 
th© counsel on the other sid^e eould not be allowed to 
alter his motion, and that in the form it was origin- 
ally framed nothing could be granted him by the 
court ; that a motion to set aside a verdict was in 
itself nugatory without being followed by a new trial, 
and that the court would not grant indirectly that 
which ^^f would not grant directly. That setting 
aside a verdict agreeable to the plaintiff's motion, 
would in effect be granting a nonsuit which couM not 
be done unless a point had been reserved. Upon 
this point, however, the court overruled the counsel, 
it being suggested and allowed that the irregularity 
of the defendant's motion had in some measure arisen 
from some observations of the court. He contended, 

2ndly. That the damages in this case were so very 

small that the court would not interfere ; that the 

mihim&ai as established by the English praotiee for 

ffafttiijg'Stew trials, which we .have adopted, was 

26 



202 HILARY TERM, 6 GEO. IV., 1825. 

£20, as laid down in Chitty's reports. Srdly. The 
counsel assumed that the facts appearing at the trial 
varied from the judge's notes, and proposed reading 
affidavits of jurymen and persons at the trial in ex- 
planation of the judge's notes ; but in this he was 
overruled by the court ; Campbell, J., observing, 
that affidavits of jurymen or other persons could not 
be read unless the judge had any doubt upon his 
mind as to the facts, which was not the case here. 

4thly. That the jury having upon evidence found a 
verdict for the plaintiff, the court would not allow a 
mere point of law to be litigated, viz.: whether there 
was a sufficient charge of property to maintain the 
action, which in fact was the point attempted to be 
litigated. 

Eule absolute for a new trial. 



Mters v. Eathburn. 

Where a defendant bad neglected to put in special bail upon the represen- 
tation of the plaintiff that it was unnecessary, (they being about to com- 
promise,) proceedings upon the bail bond were staid for one month, to 
give defendant an opportunity to put in such bail. 

In this case an action had been commenced upon 
the bail bond in consequence of bail above not hav- 
ing been put in and perfected, and Robinson, Attor- 
ney-General, had obtained a rule to shew cause why 
the bail bond should not be delivered up to be can- 
celled upon affidavits stating a treaty for settlement 
of the action between the plaintiff and defendant ; 
and that in consequence of such treaty being on foot, 
plaintiff had told defendant that there was no neces- 
sity for entering special bail, and that plaintiff had 
also informed one of the bail to the sheriff that he 



HILARY TEEM, 6 GEO. IV., 1826. 20'3' 

might consider himself as no longer responsible for 
the appearance of the defendant, as himself had 
settled, and that defendant had been dissuaded from 
entering special bail by plaintiff frequently stating 
to him that there was no necessity so to do. 

Macaulay shewing cause, insisted that a bail bond- 
being a writing under seal could not be destroyed 
by a parol agreement. 

That the settlement proposed between plaintiff 
and defendant not having taken place, it became ne- 
cessary that the defendant and his bail to the sheriff 
should have proceeded in the cause by putting in 
special bail. 

That there was no ground for the equitable inter- 
ference of the court, unless merits were sworn to, 
and that if there were such, the proceedings might 
be stayed upon payment of the costs incurred in the 
action commenced against the bail, putting in bail 
above and going to trial. 

Per Curiam. — Proceedings to be stayed for one 
month, to enable defendant to put in bail above. 



Doe DEM. Griffin v. Eob. 

Plaintiff's attorney having served his declaration in ejectment with notice 
to appear in a term not issuable agreeable to a modern rule of the court 
of K. B. in England, not introduced into this country, nor appearing in 
Tidd's edition of 1817, the judgment was set aside. The English rule is 
now adopted. 

Agreeable to a rule of court ordered by the court 
of King's Bench in England, of Easter Term, 2 Geo. 
IV., and printed in Bamawell and Alderson's re- 



^4': HpiSaYr'EEEMVA'GlilCK-Xf.VtaaR.: 

pej?tg, (ia) tte pJaistif^s lessor m tkJscase Isa^ sei!t#: 
km ^eeHairati©!! in ejeetroeat israaediately laefQm lasl 
Mwk^elmas Ternt^ witb notice to appear m said 
MicM^mas Term ; aB<3i, upon lli© mml affii*vil ¥ 
service, had moved for and Qbtamed his judgment 
nisi against the casual ejector; and the tenant in pos- 
sessien not havinf entered into the usual eoftsent 
rule, be had signed judgment and issued a writ of 
possession to the sheriff. 

Tai/lor had obtained a rule to sheAV cause why the 
judgment against the casual ej'ectox, signed in this 
cause, should not be Set aside and the tenant restored 
to his possession on the ground, that although hy 
rule of this court, the practice thereof is to be gov- 
erned by that ot the court of King's Bench in l^gg^ 
land, tl^aX rule must be construed as extending only 
to such rules and practice as the practitioners have 
an opportunity of knowing by reference to tiie 
aekriowledged books of practice. 

Macaulay, shewing cause, contended, that the Eng- 
lish rule in question was sufficiently old to be con- 
sidered as pirt Oif our practice ; that no limitation 
was made by our own rule as to what parts of the 
English practice we were ^ adopt, but that we had 
embraced it in toto. 

The 0ou.rt w«re of opinion, that as Tidd's practice 
w:as, that to which the. practitioners usually referred 
for authority in this country; and as the English rule 
in question had not, as appeared, been published in 
that work, it would be unreasonable that suitqrs- or 

(o) 4 B. &: A. 889. 



|Wai(ti^^ft^t.?hwld Ije surprised % its prQ4i«|<;i«n, 
and dir^eted that the edition of 1817 should ba eoa- 
sid)t?ed as that which regulated the ppaqtiee of tlm 

■ Ruk afesfliite-. 



CuMMiNG V. Allen. 

Where there is no provision in an order of reference at nkiprut to make it 
arrule »^cottrt, the court will not set aside the award. 

In this case a verdict had been taken for £250, 
subject to the award of arbitrators; but the order of 
reference contained no provision to make it a rule 
of court. The arbitrators had awarded that the de- 
fendant should furnish the plaintiff with a suit of 
clothes. 

Washburn had obtained a rule tiisi to set the award 
aside on the ground of uneertaiuty, and that articles 
of dress were not the subject matter of the submis- 
sion. 

Boulton, Solicitor-General, shewing cause, eon- 
tended, that there being no provision for making the 
order of nisi prius a rule of court, that this court had 
no authority to interfere ; that the case was anaJagous 
to that of a submission by bond, where, if there was 
no such provision, it could not be summarily pro- 
ceeded upon in this court. That the case of Smith v. 
Abbot was in point, where the parties having re- 
ferred disputes to arbitration, applied to the court to 
make their submission a rule of court, but the appli- 
cation was refused upon the ground that there was 
no provision for such a proceeding in their submis- 
sion. 



206 HILARY TEEM, 6 GEO. IV., 1825. 

Washburn, contra, contended, that there being a 
verdict in this case made a material distinction, inas- 
much as it was subject to the equitable interference 
of the court, although no provision was made for 
making the order of nisi prim a rule of court. 

That the exercise of fEe*authority of the court in 
this case would be analogous to that of granting a 
new trial. 

Rule discharged. 



^ Ferguson v. Murphy. 

An affidavit to hold to bail stating, " that the defendant was indebted to the 
plaintiff in the sum of iC50, for the use and occupation of a certain tene- 
ment," held sufficient. 

Macaulay had in a former part of the term ob- 
tained a rule nisi to cancel the bail bond and file 
common bail in this cause for defects in the affidavit, 
which stated, that the defendant was indebted to the 
plaintiff in the sum of fifty pounds for the use and 
occupation of a certain tenement. 

He cited the case of Taylor v. Forbes {a) as in 
point, contending that as in that case the affidavit 
was adjudged to be defective for not stating that the 
goods were sold and delivered by the plaintiff to the 
defendant, so in the present case, the affidavit was 
equally faulty in not stating that the tenement was 
let by the plaintiff to tTie defendant. 

Bnulton, Solicitor-G-eneral, shewed cause. — He in- 
sisted that the affidavit was sufficient, and relied 

1 (a) 11 East. 315. 



HILARY TERM, C GEO. IV., 1825. 207 

upon a case decided in Trinity Term, 40 G-eo. HI., 
cited in Tidd, wherein it was determined that an affi- 
davit, made by a married woman, " that the defen- 
dant was indebted for the rent of lodgings," was 
sufficient, although it did not state to whom the lodg- 
ings were let. 

Macaulay, contra, contended, that the case cited 
from East, was in point with the present, and that 
the principle there laid down by Lord Ellenborough 
should not be departed from, viz.: that the strictness 
required in affidavits was intended not only to guard 
against perjury, but to prevent misconceptions of the 
law by persons making them. That the case cited 
from Tidd was not to govern the present, it being 
but loosely referred to without the name of the cause. 
That such a defective statement of a cause of action 
would be insufficient in a declaration, and a fortiori 
should be so in an affidavit to arrest the person. 

Campbell, J. — This is a rule to shew cause why 
an affidavit to hold to bail should not be set aside for 
uncertainty ; it is undoubtedly true that uncertainty 
in such affidavit in a part material is fatal : affidavits 
for holding to bail must be direct and positive as to 
the cause of action, and not merely argumentative or 
by way of inference or reference to books, accounts, 
notes, or bills of exchange, or as deponent verily 
believes, (a) 

The strictness, however, required in this respect 
must not be carried to an unreasonable extent, and 
must ever be governed by the nature of the transac- 

(a) Vide 1 T. R. 716; 8 East. 106; 7 East. 194; 8 T. R. 333. 



208 HILABY TERM, 6 GfiO. tV., 1«26. 

tioia and the relative situation of the parties, for besides 
the general exception in favour of those who sue in 
another right, such as executors, administrators, as- 
signees, or trustees, who are only required to swear 
to their belief of the debt being still due and unpaid, 
it has been decided in Bradshaw v. Suddington, {a) 
that an affidavit of a person suing in his own right, 
stating the debt to be due on a certain bill of ex- 
change without stating in what capacity the plaintiff 
sued, whether as payee or endorsee, was sufficient ; an 
affidavit of a married woman stating merely that de- 
fendant was indebted for rent of lodgings without 
saying to whom the lodgings were let, and also for 
money lent by her to defendant, (although she was in- 
capable of lending money,) was held sufficient, for it 
was reasonably inferred that the lodgings were let 
to defendant, and that she might probably have lent 
the money as agent for her hustend ; in the Case of 
Barclay and others, assignees, v. Hunt, an affidavit 
stating, as appears to deponents by the last examina- 
tion of bankrupt, and as they verily believe, was held 
sufficient, this of course is within the general excep- 
tion already mentioned ; but Lord Mansfidd, in de- 
livering the unanimous opinion of the court, took oc- 
casion to observe that the courts ought never to lay 
down a rule to be so rigidly construed as to lay 
unreasonable difficulties upon suitors, and to render 
them liable to inconveniences worse than those the 
rules were intended to prevent ; the same liberal 
principle was acted upon in the case of Moutley 
v, Eichardson (i) by Forster and Wtlmot, justices, 
who admitted an affidavit stating " that the defendant 
was indebted to him in such a certain sum as he the 



'(o) 7 last, {b) 2 Bur. 8 T. K. 



HILARY TERM, 6 GEO: IV.," 1825. 269* 

plaintifif computed it," observing that the more rigid^ 
rule had gone a great way ; and in Copiengef/ v. 
Beaton, it was the unanimous opinion of the court, 
consisting of hord Kent/on, C. J., and Grose Lawrence^ 
and LeBlanc, Justices, that an affidavit stating " that 
defendant was indebted to plaintiff in £12,000 and 
upwards for money had and received on account of 
plaintiff," without saying received by the defendant, 
was sufficient, upon which occasion they observed 
that no precise words were required in an afiidavit 
to hold bail, it being sufficient to state, " defendant 
being indebted to plaintiff in a certain sum," and 
specifying the nature of the demand, and the 
courts ought not to entangle suitors in unnecessary 
niceties ; yet the same judges, with the exception of 
Lord Kenyan, whose place was supplied by Lord 
Ellenhonrugh, a few years afterwards, seem to have 
altered their opinion and to have laid down a much 
more rigid rule, as appears by their decision in 
Perks V. Severn, Cashrow v. Haggar, and finally, in 
Taylor v. Forbes, where they rejected affidavits, 
stating defendants being indebted to plaintiffs for 
goods sold and delivered — omiting to say delivered 
by plaintiffs to defendants. Very great deference 
is undoubtedly due to the opinions of those last men- 
tioned eminent judges, but certainly not more so 
than to the opinions of such men as Forster, Wilmot, 
Mansfield, and Kenyan, whose more liberal senti- 
ments I am inclined to prefer. All authorities, how- 
ever, agree, that affidavits for holding to bail should 
be sufficiently explicit and positive to sustain (if 
false) a prosecution for perjury, which I believe to be 
the only true criterion, and I am inclined to think 
the affidavit before us is sufficiently explicit and posi- 
27 



^1^ d 3II4?tY TERM, § GEOv W... 18?5. 

sitive for. that purpose according to the. authorities 
I have cited, or at least the more lilseral pairt of 
them. But those authorities are not all we have to 
govern our decisions in cases of this kind : Willi us. 
the law of arrest and holding to bail turns upoi^ a 
very different prineiple to that of merely swelring 
to a debt, which, however positively sworn to, and 
to whatever amount, seems to be but a secondary 
object in the affidavit for holding to bail — the princi- 
ple being the apprehension of intended fraud by 
leaving the province without paying the debt, and 
without swearing to which no one in this province 
can be arrested or held to bail for any amount of 
debt. In the present case the law seems to be suffi- 
ciently complied with in that respect also, and there- 
fore I am of opinion that the rule should be dis- 
charged. 

Per Curiam. — Rule discharged. 



[211] 
EASTER TERM, 6 G-EO: IV., 1825. 

Present : 

The Honourable Chief Justice Powell. 
Mr. Justice Campbell.^' 



rugglbs groobfame, on the demise of, v. 

Oarfrab, 

Semble, that a Ji. fa. cannot issue against lands and tenements of an intes* 
tate deceased, as being assets in the hands of an administrator. 

This was an action of ejectment tried at the assizes 
for the Home District, and a verdict for the lessor of 
the plaintiff who claimed as heir at law to James 
Ruggles, his father, deceased, and supported his 
claim by the ordinary testimony of the ancestors 
dying in possession and his own title as heir. 

The defendant claimed as purchaser at a sheriff's 
sale, and produced the following documents in sup- 
port of his title : 

A judgment entered and docketed against James 
Ruggles, the ancestor, in favour of John Grey. 

A scire facias against the administratrix of Ruggles, 
deceased, 

Kfieti facias against the goods of the deceased, 
and a return of nulla bona. 

* Mr. Justice Boclton did not take his seat upon tha Benehsrfteir t]te*19tli . 
of April, until his return from England. 



212 EASTER TERM, 6 GEO. IV., 1825. 

kfi.fa. against the lands of the deceased. 

The sheriff's deed to the defendant, he having 
been the highest bidder at the sale. 

Upon these lacts the judge at nisi prius directed 
the jury that he considered the law to be in favour 
of the plaintiff, it having been determined in this 
court that lands were not assets in the hands of ad- 
ministrators ; and the jury accordingly found a ver- 
dict for the plaintiff. 

Baldwin moved for a rule nisi upon the ground of 
misdirection in the judge who tried the cause. 

He submitted that there was a difference to be ta- 
ken between the case of Wycott v. McLean referred 
to by the judge who tried the cause and the one be- 
fore the court, the former being a case where no 
judgment had been obtained against the intestate, 
whereas, in the present, a judgment which bound his 
lands had been entered and docketed before his 
death, which clearly subjected the lands to the pro- 
visions of the 5 th George II, 

The counsel referred to the case of G-ray and Wil- 
cox, in which it had been decided upon appeal to the 
King in Council, that a Ji. fa. could issue against 
lands and tenements in this province. 

He further observed, that the latter decision of 
Wycott V. McLean, if it affected the present case, 
had been decided long after the defendant Carfrae 
had been in possession of the premises of which he 
was attempted to be dispossessed by the verdict in 
the present action. 



EASTER TERM, 6 GEO. IV., 1825. 213 

Macaulay, contra, observed that there was no dis- 
tinction whether the judgment was obtained against 
the testator or intestate, or against the administrator. 
That in neither case did any thing appear upon the 
record on which to ground an execution against lands 
as in the possession of the personal representatives. 

That, in the case of G-ray and Wilcox, the lands 
were in possession of the party himself, against whom 
the execution had issued, and the refusal of the exe- 
cution appeared on record. 

[The Chief Justice observed, that on a writ of ap- 
peal the party could state his grounds.] 

The counsel considered that there was no differ- 
ence between a writ of error and an appeal. That 
they would be equally nugatory in this case, as no 
facts could appear upon the record upon which the 
superior court could adjudicate. 

Powell, C. J. — The law, as now ruled in ^his 
province, is that which was stated by Mr. Justice 
Boulton, who tried the cause, viz.: that an execution 
cannot issue against the lands and tenements which 
belonged to a deceased person as assets in the hands 
of his administrator, it having been so decided by a 
majority of the judges of this court, although with my 
own dissent. I therefore do not think that a new 
trial can he granted in this case, particularly as Mr, 
Justice Campbell concurred in that decision, (a) 

Per Curiam. — Application refused, {b) 



(a) The 5 Geo. IL, cap. 7, see. 4, enacts, "that the houses, lands, ne- 
groes, and other hereditaments and real estate, situate or being within any 
of the said plantations belonging to any person indebted, shall be liable to . 



2|4 BASTEft TERM, C GEO. IV., 1826. 

THEOOP T; OOLE. 

A plaintiff cftntiot, after talcing out Wb ca. re-, in one district, file his decla- 
ration in another. 

TMe defendant had been arrested upon a mpias, 
issued out of the office of the deputy clerk ef the 
Crown, in the Newcastle District. The plaintiff ftled 
his declaration in the Home District. 

Mac^lay moved for and obtained a rule nin to 
set aside the declaration on the ground of irregu- 
larity. 

Per Curiam. — Application granted. 

and chargeable with all just debts, duties, and demands of what nature or 
kind soever, owing by any such person to His Majesty or any of his sub- 
jects ; and shall and may be assets for the satisfaction thereof in like man- 
ner as real estates are by the law of England, liable to the satisfaction of 
debts due by bond or other speciality ; and shall be subject to the like reme- 
diesi, proceedings, and process in any Court of law or equityj in any of the 
said plantations respectively, for seizing, extending, selling, or disposing of 
any such houses, lands, negroes, or other hereditaments, and real estate, 
towards the satisfaction of such debts, duties, and demands, in like manner 
as personal estate in any of the said plantations respectively are seized, 
extended, sold, or disposed of, for the satisfaction of debts. 

(i) It appears from the case of Gray and Wilcox, referred to by the coun- 
sel for the defendant, that it was doubted in the year 1808, whether a writ 
otfisri facias could issue against lands and ten«aents in this province, under 
the provisions of the statute of Geo. 11. In that case the plaintiff had signed 
a judgment upon a eognovit^attioneiu, and had obtained A rule in this couft 
to shew cause why a writ of execution should not issue against the lands 
and tenements of the defendant^ which rule was afterwards discharged, and 
the proceedings being removed to the court of appeal in this province they 
were affirmed. 

They were afterwards by the plaintiff referred to the King in Oquncil, 
who, by decree dated the 15th of February, 1809, reversed the decisions pf 
the Court of King's Bench and Court of App^, and directed that a wi^ (^ 
execution should be awarded to the appellant against the lands and tene- 
ments of the respondent. 

The case of Wyoott v. McLean, admr. of Robinson, referred to by tiie 
judge who tried this cause, was argued upon demurrer and a judgment for 
the; defendant. 

The plaintiff had brought his action against the defendant as administra- 
tor, who pleaded pUne adminvstramt. The plaintiff replied that the defen- 
dant had assets, viz.: lands, which had belonged to the intestate, to which 
replication the defendant demurred and bad judgment. 
Jf This it is presumed was the case referred to by Powell, Chief Justice, in 
that of Patterson V. McKay, in which case he observed, that it iaibeen 
detemined, that lands could not be sold in an action against an adminis- 
trator, and that the difBculties in carrying the provisions of tbe statute (Jeo. 
II. into exeoutioD, famished a strong inducement, to some legUlative pio- 
viaioij. 



%Me im. action is coauneneed ia S. f.. and art^itrnteH'^^OA MferenM 
• • S,*ard damages under £15,"thS "|)iaahtiff is hot deprived pf'coBts uijder tKe 
■diatriot c^ort act. 

In tbis case the plstifitiff had brought his adtioti for' 
a sum which exelMed the jurisdiction of the distriiif 
court. The matter had been referred to arbitration, 
and the arbitrators had awarded the pr9.intiff a suta 
with costs, Which, if recovered by verdict, would, by 
the district court act, have deprived the plaintiff of 
his costs, unless the judge at the trial had certified 
under the statute. 

Bdulten, Solicitor-General, moved for an order to 
the master to tax the plaintiff such costs only as he 
would have been etititled to, if be had brought his 
action in the district court. 

Sedpet Curiam. 

Parties are not confined to district court costs in 
cases where they have had no opportunity of apply- 
ing to a judge at nisi prius for a certificate. 

Application refused. 



Secoed v. Horkob. 

Where an action was brought upon a promissory note, the, consideration for 
which had arisen in the district of A., and the plaiittiff brought his aetion 
and recovered a verdict under £15 in the (fistrict of B;, this court refused 
to set aside the judge's oertifieate to entitle the plaintiff to costs under the 
district court act. 

In this case the plaintiff resided in the district of 
Grbre, and the defendant in the district of London. 
The defendant had contracted a debt to the plaintiff, 
in the district of Gore, and bad afterwards given his. 
promissory note for the amount at Berford, in the 
district of London. 



216 BASiEE TERM, 6 GEO. IV;,- 1826; 

The sum for which the note was given was within 
the jurisdiction of the district court. The plaintiff 
commenced his action in the Court of King's Bench, 
and obtained a verdict for the amount of the note at 
the assises for the district of London, 

After verdict he applied to the judge who tried 
the cause for a certificate under the district court 
act, upon the ground that the debt for which the 
note had been given having been contracted in the 
district of Gore, the plaintiff would, if called upon 
to prove the consideration of the note, have been 
obliged to resort to the district of Gore for the testi- 
mony of witnesses whose attendance he could not 
have compelled by district court process. 

The certificate was granted. McAulay applied to 
discharge it. 

Sedper Curiam. — Application refused. 



Ward v. Stocking and Daley, bail of Hosier. 

Where a defendant presented himself to the sheriff in discharge of his bail, 
before the return of the ca. sa. which had been lodged in the office merely 
to fix the bail, and the plaintiff nevertheless proceeded against them, this 
court set aside the proceedings. 

Macaulay had obtained a rule nisi to set aside the 
proceedings against the defendants in this case, upon 
an af&davit stating that the defendant in the original 
action had presented himself to the sheriff before the 
return of the ca. sa. which had been lodged in his 
office for a return of non est inventus, and had re- 
quired him to take him in discharge of his bail, (the 
defendants in this action.) 



EASTEE TEEM, 6 GEO. IV., 1825. 217 

The plaintiff's attorney had ordered the sheriff by 
letter not to take the defendant in the original 
action. 

The counsel submitted that although the sheriff 
was not bound to hunt for the defendant, yet, as he 
had presented himself to him for that purpose, he 
should have taken him. ^ 

Baldwin shewed cause. — He contended that it Was 
npt the duty of the sheriff to take the defendant, and 
that it was the regular and common practice to issue 
a ca. sa. against a defendant for the purpose of giving 
notice to the bail, which was an indulgence to them. 
But that if it was the duty of the sheriff under the 
circumstances to have taken the original defendant, 
the sheriff shouM have done so ; and that it would 
be unjust to punish the plaintiff for neglect of duty 
in the sheriff. The counsel cited the cases below to 
shew that sheriffs may refuse to take defendants 
against whom a ca. sa. has issued as a notice merely 
that a plaintiff intends to proceed against the bail. 

Macaulay, contra, observed, that the cases cited 
were where parties had attempted to surrender after 
the return of the ca. sa., and, therefore, were not in 
point : that the sheriff was discharged by the plain- 
tiff's letter. 

Per Curiam. — Eule absolute. 



28 



218 EASTER TERM, 6 GEO. IV., 1825. 

Matticb V. Farr BT Ai. 

In trespass g. c.f. and for destroying goods, the township laid is descrip- 
tive and must be proved as laid, and if the trespass is proved to be In 
another township, the variance will not be cured, because the township 
laid has the same name with the county in which the true township is 
situate. 

This was an action of trespass for entering plain- 
tiff's house, and destroying his goods, &c., which the 
declaration stated to be in York, in the Home Dis- 
trict, and a verdict for the plaintiff. 

The proof, at the trial, was, that the defendants 
committed the trespass in Etobicoke in the Home 
District. The defendants' counsel had moved for a 
nonsuit at nisiprius, upon which Boulton had obtained 
a rule nisi to set aside the verdict upon the ground 
of vairiance between the declaration and proof. 

Baldwin, shewed cause. — He contended that the 
gist of this action being the destruction of the plain- 
tiff's furniture rather than the trespass upon his land, 
that locus in quo was not the subject of dispute; and 
therefore the word "York," in the declaration, was tobe 
considered rather as venue than description; and that 
York being the county in which Etobicoke is situated, 
the declaration was substantiated. The counsel cited 
the authorities below, {a) 

Boulton, Solicitor-General, contra. — That the name 
York is not venue, but was in fact the locus in quo, 
which was necessary to be stated and proved, which 
not being done the plaintiff must be nonsuited ; the 
language of the declaration is broke and entered his 
house there situate, &c., which situation must be 
proved as laid. The counsel cited the authorities 
below, {b) 

(a) 2 East 501; Arohbold, 103 ; Phillips, 174, (i) Salk, 452; Strange, 595, 



EASTER TERM, 6 GEO. IV., 1825. 219 

Baldwin, in reply, contended, that York was venu^e 
and not local description, and that the court would 
give it such a meaning, viz., would consider it as 
the county of York, to support the verdict, and relied 
upon the case cited, (a) where it was contended, in a 
nuisance case, that the injury must be laid in the 
proper vill, but that opinion was overruled by Lord 
Elknboraugh, who said it was unnecessary, the locus 
not being the gist of the action. 

Chief Justice. — The question is, whether in spite 
of reason and common sense we can consider that 
York means the county and not the township ? 

Where a trespass is charged to have been com- 
mitted upon your close, the least you can do is to 
bring it into a township if not a vill. I don't see 
how, considering York as a county, as has been con- 
tended for, can mend the matter. It is clear that to 
enable a defendant to make his defence in an action 
of quare clausum fregit that a township should be 
laid. 

Per Curiam. — Eule absolute. 



LossiNG V. Horned. 

It seems to be sufficient iu an action upon bond, conditioned for the per- 
formance of an award upon the plea of non est factum and subsequent 
suggestion of breaches by the plaintiiF, to prove the bond and submission 
set out upon the record, And an award tallying with it. That if a defen- 
dant proposes to object to matter apparent upon the face of the award or 
to variance between it and the submission, he should pray oyer and demur. 

This was an action against the defendant as co- 
obligee upon a bond of submission, and tried at the 
assizes for the London District. Declaration in debt 



(a) 1 T. K. 479. 



220 EASTER TERM, 6 GEO. IV., 1825. 

upon bond. Plea, non est factum. The condition, as 
enrolled by the plaintiff, recited that a controversy 
of a very important nature had arisen between Hugh 
Webster (the co-obligee) and the plaintiff, and they 
had agreed to refer it to David Curtis, James Mills 
and three others named, and were to abide their 
award. Breach, that said David Curtis, John Mills, 
&c., made their award, &c., by which said David 
Curtis, John Mills, &c., awarded that all controver- 
sies should cease touching the said premises, and that 
said Hugh Webster should, on demand, &c., pay to 
the plaintiff £125, with costs annexed, that is to say, 
£77 17s. 6d. for costs of reference, fees and expen- 
ses of said arbitrators. Averment of diligent search 
for Webster, that he could not be found' — non-pay- 
ment by Webster, and demand of the £125 awarded, 
at the house of Horned. Non-payment by him. 
Similar averments as to the £77 17s. 6d. costs. 
There was a verdict for plaintiff upon the breaches 
for the amount only of the sum awarded to the 
plaintiff. 

Boulton had obtained a rule to shew cause, why 
the assessment of damages should not be set aside on 
the following objections : — 

Firstly. — That no evidence had been given at the 
trial to shew that the bond produced was the same 
with that declared upon. 

Secondly. — ^That no evidence had been given to 
connect the award with the submission, under which 
the arbitrators were supposed to act. 

Thirdly. — That the award was void on the faoe of 



EASTEB TEBM, 6 GEO. IV., 1825. 221 

it, the arbitrators having awarded themselves costs, 
which they had no right to do, and inasmuch as there 
was no mutuality. 

Fourthly.— That the demand of debt and costs was 
not a demand of the debt alone. 

Fifthly. — That the demand should have been per- 
sonal. 

Sixthly. — That the submission varied from the 
award, the former being in the name of James, and 
the latter in that of John. 

Macaulay shewed cause, as to the two first objec- 
tions he observed that there was no variance between 
the evidence and the record ; and that all the plain- 
tiff had to do was to prove the breaches suggested, 
which he had done by producing a bond and submis- 
sion, and an award tallying with it ; to this point he 
cited (a) the authorities below. 

As to the third, he contended that the defendant's 
objection came too late. If he had intended to insist 
that the award was void upon the face of it, thait 
should have been done by special pleading and not 
after verdict. That a note might as well be im- 
peached after assessment of damages upon it as this 
award. The one as well as the other is only laid 
before the jury for the purpose of ascertaining the 
plaintiff's damages. That if the defendant had 
meant to contend that the award was intrinsically 
void, he ought to have demanded oyer and demurred. 

{a) 2 Camp. 87 ; 7 T. K. 765. 



222 EASTER TERM, 6 GEO. IV., 1826. 

The counsel cited Caldwell in support of this position, 
as also the {a) authorities below. 

As to the objection to the want of mutuality, he 
contended that the direction of the arbitrators that 
all controversies should cease touching the said pre- 
mises, constituted a sufficient mutuality, as appeared 

from the case of v. Grrevett, [h) and that the 

sum awarded the plaintiff, must be taken to be 
awarded in satisfaction. 

As to the fourth objection, he observed that as there 
was a doubt as to the manner in which the demand of 
the damages awarded and the costs had been made, 
that it might fairly be inferred that the bill of the 
arbitrators' costs having been upon a separate paper, 
although annexed to the award, that the demands were 
several, as indeed had been found by the verdict. 

As to the fifth, he contended that a personal de- 
mand was unnecessary except for the purpose of 
subjecting a party to attachment ; and referred to 
the presentment of bills of exchange and services of 
law proceedings, between which and the service of 
an award for the purpose of an ordinary suit, he 
contended there was no distinction, and cited 5 
Taunton ; 1 Bos. and Pull. 394 : Ohitty 17, 18, and 
Caldwell 191, to shew that the not being able to find 
Webster, was a sufficient excuse for not making a 
personal demand, if such could be considered as a 
condition precedent. The counsel cited the cases of 
Eoper V. Hodges, and Oresswell v. Eandolph, (c) 
to "shew that a request was not necessary, 'and he 



mon 



(o) 1 Saundera 327, B.; 3 Veal t. Warner in notes, (b) 1 Lord Ray- 
ond, 961. (c) 1 Raymond, 284, 694. 



EASTER TERM, 6 GEO. IV., 1826. 223 

relied particularly upon the case of Brandon v. Bran- 
don, (a) as clearly shewing that where an action is 
brought upon an award, no personal demand is neces- 
sary ; observing that in that case, although Lord 
Chief Justice Eyre consented with the other judges 
that it had been the practice to require a personal 
demand in cases of attachment, yet he did not think 
it was even in those cases required upon principle. 

As to the sixth, that the word '-'said," made it 
evident that the arbitrators in the award were the 
same with those in the reference. 

Boulton, Solicitor-Greneral, contra, contended, that 
it was necessary for the plaintiff to have proved the 
breaches assessed step by step. That for any thing 
that appeared in evidence, there might have been 
another bond on which the arbitration had proceeded. 
Further, that the award should have been connected 
with the bond by evidence, and cited African Com- 
pany V. Mason. It should have been shewn that, the 
subject matter of the recital, namely, the controversy 
of an important nature, was referred and no other ; 
whereas it appeared by the award that the arbitra- 
toi*s had made their award concerning "all contro- 
versies." To shew that the recital was important 
and the key to lead the arbitrators, he cited the au- 
thorities below, {h) Further, that it should have 
been shewn that the bond from Horned to Lossing 
was the same document as that from Horned and 
Webster, and that it should have been proved that 
the arbitrators had proceeded upon the bond upon 
which the action was brought, and cited Hodgkinson 
V. Marsden. (c) 

(o) 1 B. & p. 394. (6) Strange, 297 ; 2 Sanders, 414. (c) Com. Dig. 542. 



224 EASTER TEEM, 6 GEO. IV., 1825. 

That the award was void upon the face of it, for 
that the arbitrators had awarded themselves costs. 
It was also void inasmuch as the arbitrators had 
awarded that all controversies should cease, whereas 
they only had been authorised by the condition to 
arbitrate on one matter, and nothing can be inferred 
to have been submitted to them, which does not ap- 
pear to have been referred by the submission. He 
admitted that the submission might have been ex- 
tended by averment, but then the averment must be 
proved as in Gransford v. Grriffith. The award was 
insufficient, inasmuch as it does not award a release 
to be given to the defendant. 

As to the fourth point, want of demand, that de- 
mand of the two sums awarded could not be con- 
sidered as a demand of one. That the instances of 
bills of exchange, &c., adduced on the other side, 
were not in point, being cases where the law raised 
an assumpsit, and where no demand was necessary. 

The award was also void for the variance between 
the submission and award. In support of which he 
cited Bos and Pull, and concluded by observing, that 
the plaintiff had not proved his breaches as suggested, 
viz., that the arbitrators had made their award under 
the submission. 

The Chief Justiob observed, that the court thought 
the two subjects of the demand being stated upon 
different papers as in evidence, (if a demand was in 
fact necessary,) it might be considered as such, and a 
demand of that which the plaintiff was entitled to 
receive. That the court considered the objections 



EASTER TERM, 6 GEO. IV., 1825. 225 

Mile, except the one to the arbitrators awarding 
costs to themselves, which they had no right to do, 
and which circumstance the jury had considered in 
their verdict. 

Per Curiam. — Rule discharged. 



RULES OF COURT. 

Reqitla GtEKtbralis (English.) 

Michaelmas Term, 1820. 

Whereas by the common consent-rule in actions 
of ejectment, the defendant is required to confess 
lease, entry, and ouster, and insist upon his title 
only : and whereas in many instances of late years, 
defendants in ejectment have put the plaintiff, after 
the title of the lessor of the plaintiff has been estab- 
lished, to give evidence that such defendant was in 
possession (at the time the ejectment was brought) 
of the premises mentioned in the ejectment, and, for 
want of such proof have caused such plaintiffs to be 
nonsuited: and whereas such practice is contrary 
to the true intent and meaning of such consent-rule, 
and of the provisions therein contained for the de- 
fendant's insisting upon the title only ; it is there- 
fore ordered, that from henceforth in any action of 
ejectment the defendant shall specify in the consent- 
rule for what premises he intends to defend, and 
shall consent in such rule to confess upon the trial 
that defendant (if he defends as tenant, and in case 
he defends as landlord, that his tenant) was at the 
time of the service of the declaration in possession 
of such premises ; and that, if upon the trial the de- 
29 



226 EASTER TERM, 6 GEO. IV., 1825. 

fendant shall not confess such possession as well as 
lease, entry, and ouster whereby the plaintiff shall 
not be able further to prosecute his suit against 
the said defendant, then no costs shall be allowed 
for farther prosecuting the same ; but the said de- 
fendant shall pay costs to the plaintiff in that case 
to be taxed. 

Easter Term, 2nd Geo. /F 
It is ordered that in all country ejectments which 
hereafter shall be served before the essoin day of 
any Michaelmas or Easter term, the time for the ap- 
pearance of the tenant in possession shall be within 
four days after the end of such Michaelmas or Easter 
term, and shall not be postponed till the fourth day 
after the end of Hilary or Trinity terms respectively 
following. 

Provincial. 

It is ordered that in future where a rule to shew 
cause is obtained in this court to set aside an award, 
the several objections thereto, intended to be insisted 
upon at the time of making such rule absolute, shall 
be stated in the rule to shew cause. 

By the Court. 



[227] 
TRINITY TERM, 6 GEO. IV, 1825. 



Present : 

The Honourable Chief Justice Powell,. 
Mr. Justice Campbell. 



Doe on the demise of Link v. Ausman. 

Semble, that a will is sufficient to give an estate although not registered, 
provided no previous transfer of the property has been registered. 

This was an action of ejectment tried at the assizes 
for the district and a verdict for the plain- 
tiff. There were several points reserved at the 
trial, but the only one to which the court above ad- 
verted in its decision, was one raised upon the regis- 
try act, viz., whether by that statute it was necessary 
that a will should be registered within six months 
after the decease of the testator, (or at least before a 
transfer of lands by his heir at law,) although no 
previous registry of the land had ever taken place. 
Myers, the tenant in fee of the land in question, had 
included it in a residuary devise to his grand-chUd- 
ren. The will was not registered, and Myers the 
younger, his heir at law, had conveyed the premises 
in question to the lessor of the plaintiff. It was con- 
tended for the defendant, that the will was valid, 
there being no occasion for a registry unless some 
other instrument affecting the property had been 
previously registered. 

The judge who tried the cause directed the jury 



228 TRINITY TERM, 6 GEO. IV., 1825. 

that the will was void for non-registry, and conse- 
quently that the conveyance to the plaintiff's lessor 
was valid. 

Baldwin, for the plaintiff 's lessor, now contended 
that the exposition of the statute by the defendant's 
counsel was by an astute and unwarrantable con- 
struction of its clauses entirely departing from its 
object. That a rigid grammatical dissection of the 
sentence would render it nonsense or unintelligible. 
That whoever reads it must necessarily infer its 
meaning ; that the reasonable reading seems to be, 
" that every deed of laiids shall be held to be void 
against the subsequent purchaser unless the older 
deed should be registered before the memorial of the 
subsequent deed," and to this construction it must be 
confined, for the preamble of the statute proposes such 
registration for the purpose of the more perfect know- 
ledge of the transfer of property devised by grant 
from the Crown; and the preamble of the second 
clause to the same statute commences the proposed 
operation of the law from and after the confirma- 
tion by grant, &c., so that unless some express ex- 
ception was made in favour of the first conveyance 
from the grantee of the Crown exempting it from the 
necessity of registry, the law must be applied to 
every conveyance from the king's deed downwards 
ad infinitum. 

According to the arguments of defendant's coun- 
sel, if A., the grantee of the Crown, sells to B., and B. 
does not registef, neither need his grantee 0. nor 
any of his subsequent assigns, which is defeating the 
object of the statute, which is to make those transfers 



TRINITY TERM, 6 GEO. IV., 1825. 229 

known. As a farther instance under this construc- 
tion, if A., the grantee of the Crown, sells to B. for 
valuable consideration, and again sells to 0. for valua- 
ble consideration without B.'s knowledge and to his 
fraud, it being in the discretion of B. and C. to regis- 
ter or not, and both equally innocent of wrong, €. 
acts upon his discretion and does not register ; now 
defendant's counsel say that B.'s deed is not to be 
considered as fraudulent and void against C, because 
A.'s title to B. was not registered first ; and that in 
the case before the court the will cannot be deemed 
fraudulent against the title of Link, the plaintiff's 
lessor, because no previous transfer had been regis- 
tered, whieh is the very evil the law was meant to 
oppose. 

That plaintiff's counsel further urged, that this 
provincial statute seemed copied from the 2Qd and 
3rd of Anne, ch. 4, s. 1, which contains the same 
words, "at any time," &c., but it is to be observed 
that a subsequent statute 7th Anne, ch. 20 s. 1, 
which in its general wording is borrowed from the 
last cited, omits those ambiguous members of the 
seBtesee on which the counsel relies without amy 
reason given for such omission. That it is fair to 
suppose they were omitted for their ambiguity or 
inutility ; that the court will not now suffer a mem- 
ber of a sentence, ambiguous, or equivocal, to defeat 
the broad, obvious, and salutary object of the law. 

Macaulay, for the defendant, insisted that the words 
of the statute were too plain to allow of any forced 
construction ; no will or deed is void by the statute 
for not being registered unless some previous regis- 



230 TRINITY TERM, 6 GEO. IV., 1825. 

tration of the property in question has been made. 
The statute makes provision for registering deeds at 
the election of parties, and directs "that any deed 
and conveyance that shall at any time after any me- 
morial is so registered be made and executed of the 
lands, &c., comprised or contained in any such me- 
morial, shall be adjudged fraudulent and void against 
any subsequent purchaser or mortgagee for valuable 
consideration, unless such memorial be registered as 
by the act is directed, before the registering of the 
memorial of the deed or conveyance, under which 
such subsequent purchaser or mortgagee shall 
claim." And that every devise by will of the lands, 
&c., mentioned or contained in any memorial regis- 
tered as aforesaid, that shall be made and published 
after the registering of such memorial, shall be ad- 
judged fraudulent and void against a subsequent 
purchaser or mortgagee for valuable consideration, 
unless a memorial of such will be registered, &c. 

The same words being used in that part of the 
statute which relates to wills, shew that they were 
not inserted by error or oversight, but that they 
were intended to convey that plain and obvious 
meaning which they evidently do, and which is con- 
tended for by the defendant. 

Chief Justice. — As the judge who tried the cause 
thinks there was a misdirection, I consider that there 
must be a new trial. 

Campbell, J. — I have no doubt as to there being 
no necessity to have this will registered. 

New trial. 



TRINITY TERM, 6 GEO. IV., 1825. 231 

ShANKLAND V. SCANTLBBURY BT AL. 

A plaintiff and defendant haying settled the action between themselTes 
without paying the attorney's costs, the court refused to make the attorney 
produce his warrant in an action instituted against the bail to recover 
those costs. 

Debt upon recognisance of bail. — The defendants 
were bail of one Baxter in an action at the suit of 
Shankland the plaintiff. The plaintiff and defendant 
in that action had settled it betweeti themselves, but 
without paying the attorney his costs, and Shankland 
gave Baxter a receipt for the debt, and a release to 
the action ; the release was not sealed. 

The plaintiff's attorney, however, proceeded in the 
original cause to judgment and execution, and afterr 
wards commenced the present suit against the bail, 
without taking a warrant of attorney from the plain- 
tiff 

Washburn, on the part of the bail, moved that Mr. 
Bidwell, the plaintiff's attorney", be ordered to pro- 
duce his warrant of attorney, contending that his au- 
thority in the original action was no sufficient warrant 
for his proceeding in this against the bail. 

He also supported his motion by an affidavit that 
the plaintiff was a foreigner, residing without the 
jurisdiction of the court, (a) 

Application refused. 



(a) Tidd, 107, 545. 



232 tbinity term, 6 geo. iv., 1825. 

Sherwood v. Johns. 

A plea 8t»tiag that plaintiff enjoyed an estate 'without evietion, ^eld not a 
8«ffieient answer to a count setting out a covenant that plaintiff Ahanld 
enjoy free ftom ineumbraucee. 

Declaration ia debt upon bond.— Condition as set 
out upon oyer stated, " that if plaintiff, his heirs, &c., 
should and might peaceably and quietly hold and 
enjoy all and singular the above mentioned premises 
(those mentioned in the recital) with their and every 
of their appurtenances, free and clear of and from all 
former and other bargains, sales, surrenders, forfeit- 
ures, judgments, charges, debts, and incumbrances 
whatsoever had, made, done, committed, or suffered 
by the said Solomon Johns, or any other person or 
persons whatsoever ; and also that if said defendant 
at the time of the execution of the aforesaid deed of 
bargain and sale (that set forth in recital) was the 
lawful and rightful owner of the whole and every 
part and parcel of the aforesaid premises, &c., and 
was at the said time lawfully and rightfully seized in 
his own right of a good, sure, perfect, absolute and 
indefeasible estate of inheritance in fee simple," of 
and in the whole and every part and parcel of the 
aforesaid premises, and had a good right and lawful 
authority to sell, dispose and convey the same as 
aforesaid to the plaintiff, then the obligation to be 
void, &c. Plea. — That before and at the time of the 
execution of the deed of bargain and sale in the con- 
dition of bond mentioned, the defendant was the true, 
lawful and rightful owner of the whole and every 
part and parcel of the premises in said deed men- 
tioned, and was lawfully and rightfully seized, &c., 
and had a good right and lawful authority to sell, dis- 
pose of, an4 convey the same to the plaintiff, and that 
from the execution of the said deed and writing obli- 



TRINITY TERM, 6 GEO. IV., 1826. £33 

ptory, until the commencement of the action, the 
plaintiff did, under and by virtue of said deed, peacea- 
bly and quietly hold and enjoy all and singular the 
above mentioned premises, with their appurtenanoes; 
without any eviction thereof, by reason of any former 
or other bargain, &c. General demurrer— joinder. 

Macaulay, in support of the demurrer, contended 
that the statement in the plea that the plaintiff did 
under and by virtue of said deed peaceably and 
quietly hold and enjoy the premises, &c., without any 
eviction thereof by reason of any former or other 
bargain, &c., was insufficient, inasmuch as it did not 
fully embrace the covenant, which was that plaintiff 
should enjoy the premises free and clear of and from 
all other bargains, &c. That the statement of the 
performance of a covenant in a plea should be as 
large and ample as the covenant itself, as laid down 
in Bosanquet and Puller, where it is stated that the 
words of the plea should follow those of the 
covenant, (ft) 

That the plea was defective in form, as it should 
have stated how the plaintiff enjoyed the premises 
free from incumbrances, and that he went into pos- 
session as laid down by Oroke. {b) 

That where the covenant goes to possession only 
such a plea might do ; but where the covenant em- 
braces freedom from incumbrances, it is evidently 
insufficient. 

That if the defendant had in this case (as he 
ought to have done) followed the words of the cove- 

' (o) 1 B. & p. 445. (4) Croke, James, 165. 
30 



234 TRINITY TERM, 6 GEO. IV., 1825. 

nant, the plaintiff would have replied and shewn in- 
cumbrances. That it would be unreasonable that the 
plaintiff should wait for actual eviction to bring his 
action, which might not happen until after the death 
or insolvency of the defendant, when the very ob- 
ject of taking the security by bond would be lost. 

Boulton, Solicitor-G-eneral, contra, contended that 
as it was plainly the object of the bond to protect 
the plaintiff from such incumbrances only as should 
affect the premises after its execution, that he could 
not resort to his bond until judgments or other in- 
cumbrances actually attached upon the premises, and 
,that he had no right of action on account of incum- 
brances existing at the sale. 

That a contrary construction would affect most 
vendors in the country, it being a general practice 
to give such bonds without the parties having any 
intention that they should have a retrospective ope- 
ration. 

That if defendant can by any means satisfy judg- 
ments or incumbrances without their being put in 
execution against the premises, he has a right to do 
so, and the condition of the bond is answered. 

That the plea stating that the plaintiff did under 
and by virtue of the deed peaceably hold and enjoy, 
implies possession. 

That the plaintiff, moreover, holding title by bar- 
gain and sale is in possession by the operation of the 
statute of uses, and must therefore be evicted, to be 
divested of that possession and so have a rio-ht of 
action. 



TRINITY TERM, 6 GEO. IV., 1825. 235 

That the plaintiff having enjoyed the premises 
agreeable to the manifest and well known intention 
of this and similar bonds, a plea stating such enjoy- 
ment, without eviction, was sufficient. 

The court decided in favour of the demurrer, but 
gave leave to amend upon payment of costs within 
one month. 



Brock y. McOlean, Sheriff. 

The court -will not change the venue on the ground that defendant's public 
duty prevents his attendance at the assizes. 

Action of debt for escape. 

Washburn moved to change the venue on the 
ground of the defendant's inability to attend at the 
assizes of the district where the venue was laid, he 
being obliged to attend at the assizes. for the district 
of which he was sheriff, and those for the district 
where the venue was laid being held immediately 
afterwards. 

Application refused. 



Doe on the demise of G-ripfin v. Lee. 

A landlord may be admitted to defend in ejectment, without an afiSdaTit 
stating that he is so. , 

Taylor moved (without affidavit) that Richard 
London, the landlord of the premises in question, 
should be allowed to enter into the consent rule and 
defend. He cited Impey, 8th edition, 643, and Tidd. 



236 TRINITY TERM, 6 GEO. IV., 1825. 

Macaulay contended, that an affidavit was neces- 
sary to ground this motion, and relied upon Adams, 
139, 2 Sellon, 102, and Barns, 179. 

Per Curiam. — Application granted. 



PuRDY qui tarn v. Ryder. 

Semble, that a grantee of the Crown never having taken possession, is sub- 
ject to the provisions of the statute of Henry the eighth. 

This was an action for purchasing real estate con- 
trary to the provisions of the statute 27th Henry 
YIII., ch. 9, s. 2; the words of the statute are, " that 
no person shall from henceforth bargain, buy or sell, 
or by any ways or means obtain, get or have any 
pretended right, or title, or take, promise, grant or 
covenant to bar any right or title of any person or 
persons, in, or to any manors, lands, tenements or 
hereditaments, except such person or persons which 
shall so bargain, sell, give, grant, covenant, or pro- 
mise the same, their antecessors or they by whom 
he or they claim the same, have been in possession 
of the same, or of the reversion or remainder thereof, 
or taken the rents or profits thereof, by the space of 
one whole year next before the said bargain, cove- 
nant, grant or promise made, upon pain that he that 
shall make any such bargain, sale, &c., shall forfeit 
the whole value of the lands, &c." 

Declaration in debt upon the statute. Plea, nil 
debet. 

The evidence given at the trial was, that the plain- 
tiff was many years ago in possession of the land, for 



TRINITY TERM, 6 GEO. IV., 1825. 237 

the purchase of which this qui tarn action was brought 
under a contract from one Albertson. 

That said Albertson (who was nominee of the 
Crown) did not take out the king's patent for the 
lands until the year 1822, and on the 3rd April, 
1823, (never having had any actual possession,) 
assigned them by bargain and sale to the defendant 
in this action, who thereupon ejected the plaintiff. 

That Ryder, the defendant, at the time he pur- 
chased, knew of the previous contract between the 
plaintiff and Albertson. 

A registered copy of the old contract, between 
Albertson and Purdy, the plaintiff, was proved, as 
well as the deed from Albertson to Eyder, the defen- 
dant. 

It was also proved that the plaintiff, as nominee of 
Albertson, had applied to the commissioners in the 
year 1822, and they had, under the statute 42 G-eo. 
III., made a report in his favour. 

Upon this evidence the jury found a verdict for 
the plaintiff, with £400 damages. 

J^mlton, Solicitor'^General, had, in a former terra, 
obtained a rule to shew cause why a nonsuit should 
not be entered or a new trial had, the verdict being 
contrary to law, and improper evidence having been 
admitted at the trial. 

Baldwin now shewed cause. — He contended that 
Albertson, as grantee of the Crown, had no actual 



238 TRINITY TERM, 6 GEO. IV., 1825. 

pQSsession; that his possession was merely construc- 
tive, not such as could, deloat the provisions of this 
statute. 

That there were two objects intended by the 
statute, the first was to punish persons buying or 
selling pretended titles ; the second was to prevent 
the sale of lands of which the vendor was not in pos- 
session without reference to his title. 

That where a king's patentee enters, the king 
having no right to grant, he is a disseisor. 

That the commissioners in this case having made 
a report in favour of Purdy, the plaintiff, the king 
had no right to grant to Albertson, and that he and 
his assignee were consequently disseisors, (a) 

« 

That the king being out of possession by virtue of 
the commissioners' report, Albertson, his assignee, was 
in the same situation as any other intruder. That 
Purdy being in by contract with Albertson, could 
not be considered as an intruder, for the courts in 
this country have always recognised the title of a 
nominee of the Crown, which Albertson was; that it 
would be most inconvenient to the country if every 
man or his assignee who was in possession of lands 
before the king's grant issued was to be so considered. 

That the maxim that the possession of lands to 
enable a Vendor to make title without incurring the 
penalties of the statute, must be actual and not con- 
structive, was unanswerable. 



(a) 2 Hawkins, ch. 86, s. 4 ; Co. Litt. 869 ; 1 Plowden, 88 ; Com. Dig. 
265, Tit. Seizin. 



TRINITT TEEM, 6 GEO. IV., 1825. 239 

5oM/-fo», Solicitor-General, contra.— To bring this 
defendant within the statute, it is necessary that 
three things should concur : 

First.— That the right of Albertson was a pre- 
tended right. 

Secondly. — That he had not been in possession or 
taken the profits. 

Thirdly.— That defendant knew these facts as to 
the first. Eight or title maybe pretended two manner 
of ways : 

First. — When it is merely in pretence and nothing 
in verity. 

Secondly. — When it is a good right or title in 
verity, and made pretended by the act of the 
party, (a) 

With regard to the first kind of pretended right, 
there is no ground for asserting, nor can it be pre- 
tended, that Albertson's title was nothing in verity, 
since he claimed under the king's patent, and there- 
fore the only question to be considered is, whether 
Albertson's good title has been made pretended by 
the act of himself and the defendant. 

That it had not for the following reasons : 

Littleton says that a right or title may be con- 
sidered three manner of ways : 

First. — As it is naked and without possession. 

(o) Co. Litt. 369. 



240 TRINITY TERM, 6 GEO. IV., 1825. 

Secondly.— When absolute right cometh to wrong- 
ful possession, and no third TpevsotihsiS jus proprieialis 
or jus possessionis. 

Thirdly. — When there is a good right and a wrong- 
ful possession. 

I will dispose of the two last first, as such titles 
are most obviously not like Albertson's, as Albert- 
son's absolute right was coeval with his possession, 
or as plaintiff contends, was all he had, (as he denies 
his ever having been in possession.) and for the latter 
reason he cannot come under the third notion of title. 
I will now return to ,the first, which is the descrip- 
tion of title plaintiff contends Albertson had, namely, 
a mere naked right without possession, v?hich having 
been sold to defendant becomes, according to Little- 
ton, {a) a pretended right within the statute; for the 
statute created no new offence,, but was only in afi&rm- 
ance of the common law, {b) giving however an addi- 
tional penalty, the value of the land, and a naked 
right to land cannot be bargained upon the same 
principle, that a chose in action which is similar to it 
cannot be made the subject of a sale or transfer by 
the common law. Therefore it remains only for me 
to shew that Albertson had the possession, as well as 
the right and absolute title, to the land when he sold 
to defendant; and first, the king, under whom Albert- 
son held, cannot be disseised or ousted of his posses- 
sion, but by matter of record, (c) nor can there be a 
tenant at sufferance against the king, but he that 
holdeth over is an intruder, {d) and for the same 
reason a person cannot be indicted for a forcible 
entry on the king because he cannot be disseised, (e) 

(a) Litt. 369. (A) Plowd. Com. 88. (c) Com. Dig., Prerog. D. 71, 11 
East. 448. (rf) Co. Litt. 57, Bao. Abr. Prerog. 662. (e) Bao. Ab. Prerog. 563. 



TRINITY TERM, 6 GEO. IV., 1825. 241 

And for that the king has possession by matter of 
record as well as title, when a subject traverses an in- 
quisition vesting title in the Crown he prays judgment 
quod manus domini regis amoveatur de possessione, (a) 
which shews that the record gives actual possession 
to the king. 

2ndly. — The king being in contemplation of law 
in possession of the Crown lands, transfers that ac- 
tual possession and seisen together with the right 
and absolute title by his grant. For the king's 
grant is equal to a feoffment with livery and clears 
all disseisins, abatements, intrusions, and other 
wrongful or defeasible estates, and the grant or deed 
is in lieu of livery, and the livery gives seisen in 
deed ; and his estates pass without livery by force 
of the patent, for the king's dignity will not permit 
him to make livery. (5) 

3rdly. — As the grantee of the Crown is in posses- 
sion by his grant, and as any person on the land of 
the Crown without matter of record is an intruder, 
the grantee may maintain trespass against such in- 
truder continuing after the grant, (c) for entry does 
not imply disseisin, and entry without disseisin does 
not imply possession, (d) so that the intruder upon 
the king continues such upon his grantee, the pos- 
session in deed being in the grantee by force of the 
patent, (e) But a man must be in actual possession 
to maintain trespass. 

A grantee of the Crown may maintain trespass 
against an intruder upon the king's possession at the 

(o) 4 Inst. 209. (6) Co. Litt. 9 & 29 ; Plowd. 232 ; Bac. Abr.— Pre. F. 
37 ; Plowd. 213, 242. (c) RoUes Abr. 659. (d) Plowd. 232. (e) Bac, 
Trespass, 566; 2 Rolls, 554. 

31 



242 TRINITY TERM, 6 GEO. IV., 1&25. 

time of the grant who continues to intrude after the 
grant. 

Therefore a grantee of the Crown is in actual pos- 
session, notwithstanding the intruder's continuance 
after the grant. 

Chief Justice. — Albertson sold, and the defendant 
Ryder bought a lawsuit, and, I consider, are within 
the intention of the statute. 

Per Curiam. — Rule discharged. 



[243] 
MICHAELMAS TERM, 6 GEO. IV., 1825. 



Present : 

The Honourable Chief Justice Campbell.* 
Mr. Justice Sherwood. 



CaRRUTHERS v. ONE, &C. 

An attorney of this court practising in the district court is liable to an at- 
tachment for not paying over money received for his client. 

Baldwin applied for a rule to shew cause why an 
attachment should not issue against an attorney of 
this court, for not paying over money recovered for 
the client, plaintiff in an action in the district court. 

The court after consideration entertained the ap- 
plication, observing that its interference was not to 
be considered as depriving the court below of juris- 
diction, but merely as exercising a concurrent one. 

Per Curiam. — Application granted. 



Johnson v. Eastman. 

In an action of slander a defendant may give facts and cirpunjstances in 
evidence in mitigation of damages. 

This was an action for slander against the plaintiff, 

a clergyman, tried at the assizes for the 

district. 

*The Honourable Mr. Justice Campbell this term took his seat upon the 
bench as Chief Jullice, in the place of the Honourable Chief Justice Powell, 
who retired. 

Levitjs p. Shbewood, Kequire, took his seat as judge, in the place of the 
Honourable Mr. Justice Campbell. 

Mr. Justice Bodi,ton was absent during this terni. 



244 MICHAELMAS TERM, 6 GEO. ,IV., 1825. 

It appeared by the notes of the judge who tried 
the cause, that the defendant had, at the trial, offered 
to give in evidence certain facts and circumstances 
in mitigation of damages, and that such evidence had 
been rejected. 

Macaulay had obtained a rule nisi to set aside the 
verdict and for a new trial without costs, upon the 
ground that the, defendant was entitled to give facts 
and circumstances in evidence in mitigation of dama- 
ges upon the general issue, provided they did not 
amount to proof of the truth of the words spoken ; 
for any thing that appeared in this case, the fact at- 
tempted to be proved might have been a general 
rumour that the plaintiff had been perjured. 

Washburn shewed cause. — He contended that, 
although general rumours could be given in evidence, 
facts, which might amount to a justification, could not. 

Macaulay, contra, contended, that facts which went 
near to prove perjury might be given in evidence, 
even proof of an oath in an extrajudicial matter, [a) 

That upon principle, it was much more just that 
facts should be given in evidence than mere rumours, 
which might be easily fabricated or set afloat by a 
malicious defendant, (h) 

Per Curiam. — Rule absolute for a new trial with- 
out costs. 



(ffl) N. P. 289 ; Campbell, 254; M. & S. 286. (6) Starkie. 



MICHAELMAS TERM, 6 GEO. IV., 1825. 245 

Whelan V. Stevens. 

Omitting to state the conTiction of a defendant in his warrant of commit- 
ment, will not subject a justice of the peace to an action for false impri- 
sonment, provided the actual conviction is proved upon his defence. 

This was an action of trespass and false imprison- 
ment, brought against defendant as a justice of the 
peace. He had committed the plaintiff to gaol under 
the 6 Geo. III., but had omitted to state in the mitti- 
mus the conviction of the plaintiff. The warrant and 
conviction were both produced and proved at the 
trial. A verdict had nevertheless been given for the 
plaintiff with £100 damages. 

Macaulay had obtained a rule to shew cause why 
the verdict should not be set aside being contrary to 
law and evidence, and a new trial granted on the 
ground, that although upon a habeas corpus a pri- 
soner detained under a warrant in execution will be 
discharged, unless such warrant states his conviction. 
Yet, if an action is brought upon the informality, it 
will be a good defence for the defendant to have the 
conviction at the trial, as was done in the present 
case. He cited the cases below, (a) 

Cartwright shewed cause. — He contended that the 
warrant of commitment being informal and not being 
stated to be upon conviction, gave the plaintiff a 
right of action which could not be taken away by its 
subsequent production. 

That if (as was admitted by the other side) the 
warrant of commitment was informal, and such as 
could not legally detain the defendant ; that if he had 
been detained under it, it was a false imprisonment. 

(a) 4 J. E. 220; 12 East. 67 ; 16 East. 21 ; 7 J. R. 631 ; 8 East. 113. 



246 MICHAELMAS TERM, 6 GEO. IV., 1835. 

That where the liberty of the subject was con- 
cerned, the court would insist upon a rigid adher- 
ence to the formalities required by law. 

That magistrates must be presumed to know the 
law, which is clearly laid down in Burns and Wil- 
liams, who state that every warrant or execution 
must state the conviction of the defendant. He also 
relied upon the King v. Rhodes {a) and the King 
V. Cooper, {h) 

Macaulay, contra, insisted, that as long as a con- 
viction remained it operated as a justification to the 
magistrates. 

That even upon a habeas corpus, though the war- 
rant of commitment might be defective as in the pre- 
sent case ; yet, if the conviction itself accompanied 
the warrant, the defendant would not be discharged. 

That even in cases of felony, though a commit- 
ment may be defective, the courts upon habeas corpus 
will call for the depositions and re-commit a criminal. 

Campbell, C. J. — To some purposes the docu- 
ments in question are separate and independent, but 
in the present case, as the conviction and warrant 
accompanied each other, they should have been 
taken as one and should have been so considered at 
the trial. 

Per Curiam. — Bule absolute without costs. 



(i) 4 J. R. 220. (J) 6 J. E. 509. 



MICHj^LMAS term, 6 GEO. IV., 1825. 247 

Doe ex. dem. Clajikb v. Rote. 

The order of this court Which authorises rules to be taken out in the de- 
puty's office in the country, does not include rules nisi in ejectment. 

In this case the declaration and notice in eject- 
ment had been served upon the tenant in possession 
in the London district. The originals had been filed 
and the rule nisi for judgment against the casual 
ejector had been taken out in the office of the deputy 
clerk of the Crown of the district under the rule of 
this court, of Michaelmas Term, 4th Geo. lY. 

Baldwin moved to set aside these proceedings for 
irregularity, submitting to the court that the rule 
could not be considered as extending to proceedings 
in ejectment. 

That it was a proceeding not usually contemplated 
or included in the ordinary rules of court. 

That the proceedings are to be inspected and the 
irregularities in them (if any) detected and reparted 
to the court, which could not be expected from the 
deputy in the country. 

That the deputies are not provided with an eject- 
ment boot, which is essential to the proceedings in 

ejectment. 

Rtile granted. 



MoGruiRB V. Donaldson. 

It is not compulsory upon a judge at nisi prius to grant a certificate under 
the 43rd of Elizabeth. 

In tshis case, which was an action of trespass and 
false imprisonment, a verdict had been found for i!he 
plaiintiff with 6d damages only. 



248 MICHAELMAS TERM, 6 GEO. IV., 1825. 

The, defendant's counsel applied to the judge who 
tried the cause for a certificate under the 43rd of 
Elizabeth. 

The judge refused to give the certificate required, 
on the ground that the statute was not compulsory, 
with leave to the party to apply for the opinion of 
the court above. 

The court established the opinion and decision of 
the judge at nisi prius. 

Application refused. 



HoGLB V. Ham. 

Gross neglect on the part of the parents, is held a ground for a new trial 
in an action of seduction. 

An action brought to recover damages for loss of 
service by the seduction of plaintiff 's daughter, tried 
at the assizes for the Midland district, and a verdict 
for the plaintiff for £250. 

The facts of service and criminal intercourse were 
proved. That plaintiff's daughter had borne a child 
to defendant. That plaintiff's daughter and the de- 
fendant had been school-fellows. That he had paid 
his addresses to plaintiff's daughter as a suitor, and 
had been considered as such by the family and 
neighbours. 

On the part of the defendant it was proved that 
he had been permitted to pass whole nights with the 
daughter in a bed room with the father's knowledge. 
A witness, Impey, had also given evidence that 



MICHAELMAS TEEM, 6 GEO. IV., 1825. 249 

plaintiff's daughter had had criminal intercourse 
with himself, and that she had told him that the 
child she had borne was probably not the child of 
the defendant. 

The judge who tried the cause had charged the 
jury to take into their consideration how far the in- 
discretion of the plaintiff might operate in diminu- 
tion of damages. 

Cariwrighi obtained a rule nisi to set aside the 
verdict and grant a new trial in this cause on 
grounds : 

1st. That the verdict was contrary to law and 
evidence. 

2nd. That it was contrary to the judge's charge. 

3rd. That the damages were excessive. 

As to the first ground, he contended that plaintiff, by 
having consented to his daughter being frequently 
alone with defendant at a time and in the situation 
detailed in evidence, had become, in fact, a particeps 
criminis, and could not be entitled to damages, con- 
sent being laid down to bar an action for criminal 
conversation. 

That should the court permit damages to follow 
conduct of this sort, it would soon be flooded with 
these actions. 

That parents of loose morals, looking forward 
to the remuneration, would be careless of their 
daughters' virtue, and would even use means to en- 
trap inexperienced young^men. 
32 



250 MICHAELMAS TERM, 6 GEO. IV., 1825. 

As to the second point, that the verdict was con- 
trary to the judge's charge, inasmuch as the jury ' 
had not at all considered the great indiscretion, if 
not criminality, of the plaintiff as a ground of taking 
away his title to damages altogether, or at least of 
giving their verdict for a very small sum. 

As to the third point, that it was evident that un- 
der the circumstances the damages were excessive. 

That £250 were not so easily raised as £5000 
were in England. 

That the evidence of Impey had not been im- 
peached, and should, at the least, have induced an 
unbiassed jury to have given very small damages. 

The counsel referred to the cases below, {a) 

Macaulay shewed cause. — He contended that this 
case resolved itself into one of excessive damages, 
f6r that there was no pretence for saying it was 
either contrary to evidence or the judge's charge. 
Tlie plaintiff had been proved to be of respectable 
character as well as his family (except in this in- 
stance ;) that the defendant Was his friehd and neigh- 
bour, and the school-fellow of his daughter ; that he 
visited the house as a suitor ; thai his own circum- 
stances as well as those of the young man were such 
as to induce a reasonable expectation in the family 
and among their friends and neighbours, that a mar- 
riaigie would take place between the defendant and 
his daughter, and the plaintiff in consequence 6f this 

(a) Peakes N. P. cases ; Jones v. Sparrow, 5 J. R. 257 : Bedstead v. 
Wyllie, K. B. reports V. 0. 



MICHAELMAS TBEM, C QEa IV., 1825. 251 

expeGtattion admitted the defendant to such freedoms 
in his house and ffiinily as are usually perinitted un- 
der such circumstances. 

The young woman had given evidence of his 
courtahip, aiid when asked if she ever had dispensed 
her favours to others than the defendant, said she 
never had. 

The defence attempted to be set up through the 
means of the witness Impey, was tliat she was not so 
immaculate as she pretended to be ; that this man's 
evidence was fairly opposed to the young -v^oinan's, 
and the jury were drawn to its consii^eration by the 
plaintiff's counsel. 

That the jury did compare them, and either con- 
sidered that Impey 's evidence was not entitled to 
credit, or that it did not extenuate the base conduct 
of the defendant. 

That it was iindoubtedly the province of the jury 
to dispose of conflicting evidence, and they had done 
so. (o) They, too, were the proper judges of the 
amount of damages, as laid down throughout the 
books, and by Lord Camden particularly. 

That this verdict should also be supported on the 
ground of puuishing the defendant, [b) 

That the case of Bedstead v. Wyllie, determined 
in this court, could not be compared to the present, 
nor CQuld apy argumenit be drawn from it in favour 
of granting a new trial in the present case. 

(o) 4 M. & S. 192. (i) 3 Wils. 18. 



252 MICHAELMAS TEEM, 6 GEO. IV., 1825. 

In that there had been a violation of all decency 
on the part of the mother, and the most criminal 
neglect. 

That the general principle to be extracted from 
the cases {b) was, that where facts were properly 
brought before a jury, they were the proper judges, 
and their decisions were not to be set aside unless 
the damages were outrageous and excessive. 

That the custom of allowing young persons to see 
each other in bed rooms and alone, and at late hours, 
though not agreeable to more refined notions, was 
predicated upon the confidence which the inhabitants 
of the country placed in each other, and the few in- 
stances in which that confidence had been violated 
shewed that it had not often been misplaced. 

That in this respect something must be allowed to 
the situation of the young yeomanry of the country, 
who were labouring in the field during the day, and 
had little opportunity of being introduced to each 
other but at night. 

That it was natural for parents to wish to see their 
daughters settled in marriage, and with this view the 
plaintifi" had allowed the defendant no other liberties 
than are usual; that perhaps slight indiscretion might 
be imputed by some persons to the plaintiff", but on 
the other hand the blackest ingratitude marked the 
conduct of the defendant. 

That he has abused the plaintiff's confidence and 
ought to suffer for it. 

(i) 11 East 22; 1 Burrow, 609; 2 T. R. 166. 



MICHAELMAS TERM, G GEO. IV., 1825. 253 

That there is no pretence for considering this ver- 
dict as being contrary to the judge's charge; it was 
clear and distinct ; the indiscretion (if any) of the 
plaintiff was drawn to their consideration, and they 
were directed to consider what weight it should have 
in mitigation of damages; that they have done so; 
have considered all the facts of the case and the 
characters of the parties and witnesses, and have 
found a verdict for £250, a sum neither outrageous 
or excessive, or indicating passion or partiality. 

Cartwright, contra, contended this not to be merely 
a case of conflicting testimony; that the girl had her- 
self acknowledged a connexion with the witness, 
Impey; that the doctrine laid down by Lord Mans- 
field (a) went to say, "that if justice had not been 
done a new trial ought to be granted." That the case 
before the court was a strong one. 

That a custom which allowed young persons to re- 
main together for whole nights in bed-rooms without 
any witnesses of their conduct, was immoral in the 
extreme and should be abolished. 

That the jury must, in this case, have been influ- 
enced by undue motives. 

That great misconduct, more indiscretion is to be 
imputed to the plaintiff than to the young man, who, 
perhaps, had been many times tempted before ho 
gave way to his passions. 

That there was no doubt of the power of the court ' 
to interfere was clearly shewn by the case of Jones 

(rt) Bright V. Lyon, 1 Burrow. 



254 MICHAELMAS TEEM, 6 GEO. IV., 1825. 

I 

V. Sparrow, (a) where they interfered in a case of 
tort of only £40 damages. 

That the case of Duberley v. Grunning {b) had beeij 
overturned by more modern decisions, and it was to 
be observed that in that case the court were not 
unanimous. 

That the case of Smith v. Book, formerly moved 
in this court, was quite in point with the present. 
There, though there was no imputation against the 
character of either the parent or the young woman, 
the court granted a new trial on account of the 
mother's indiscretion in permitting the defendant to 
remain in her daughter's room at night; that the court 
would in this case, as in that, mark this custom with 
their animadversion. 

That upon grounds of public policy and morality 
this verdict should be set aside, for what could be 
more contrary to them than to allow parents to be 
rewarded with £300 or £400 for their indiscreet 
carelessness of their daughters' virtue. 

Macaulay, in reply, stated it to be true that the 
young woman had been proved by Impey's evidence 
to have been connected with him, but it was after 
the seduction by the defendant, and therefore did not 
in the least take aw^y the plaintiff's title to damages. 

Suppose a case of two libertines supporting each 
other in their base practices, by such conduct as the 
defendant and his witness Impey had exhibited. 

(a) 5 T. R. 267 ; 1 X. K. 277. (i) 6 East 256. 



MICHAELMAS TERM, 6 GEO. IV., 1826. 255 

That the jury perhaps thought it might be the case 
here. 

That they well knew all the circumstances of the 
bed-rooms, and the visits of the defendant ; they 
knew the custom which prevailed in the country, but 
considered as furnishing no ground to encourage vice 
and the defendant's breach of confidence. 

That nothing was withheld from the jury; nothing 
obtruded upon them which should not have been. 

That having, with a full view of the case, given 
damages neither outrageous or excessive, their vein 
diet he considered ought to stand. 

/'"\Oampbbll, C J. — I have given great considera- 
/ tion to the cases and to the authorities to which we 
^ are referred by the counsel, in some of which the 
decisions seem to be at variance with the clear prin- 
ciples of law as recognized, and indeed expressly and 
distinctly laid down. In the case of Duberley v. Gun- 
ning, Lord Kenyan, as well as all the other judges of 
the court, were decidedly of opinion, that £5,000 
damages, under all the circumstances of that case, 
were beyond measure excessive; and yet the court, 
with the exception of Mr. Justice Buller, refused a 
new trial ; his lordship declaring that he thought the 
damages a great deal too much, and that he would 
have been satisfied with , merely nominal damages, 
but that he had not courage to interfere with the 
verdict. This is a doctrine to which I cannot sub- 
scribe even in deference to so high authority. 

The learned counsel in support of the rule in that 



266 MICHAELMAS TERM, 6 GEO. IV., 1825. 

case contended, that if the injustice of the verdict be 
once admitted and established, the granting a new 
trial is no longer matter of discretion but of duty in 
the court. I entirely concur in that opinion, and I 
am warranted in that conclusion by the authority of 
Mr. Justice BuUer in that same case, and by that of 
Lord Ellenborough in the case of Chambers v. Caul- 
field, where his lordship, in delivering the opinion of 
the whole court, says, ' ' That if it had appeared from 
the amount of damages as compared with the facts of 
the case laid before the jury, that the jury must have 
acted under the influence of either undue motives, or 
of gross error, or of inisconception of the subject, the 
court would have thought it their duty to submit the 
question to the consideration of a second jury." And 
Lord Kenyan, in Duberley's case, expressly states, 
and indeed all the authorities agree, that the grant- 
ing a new trial is by no means encroaching upon the 
jurisdiction of the jury, nor drawing the question to 
the examination of a different tribunal from that to 
which the constitution has referred it,but only requir- 
ing the same jurisdiction to reconsider that opinion 
which appears to be erroneous, and without a general 
power in the court to do so, his lordship adds, injus- 
tice would be done in many cases. And I take it 
upon me to say, that to prevent such injustice is in 
all cases the particular province and duty of the 
court. Under this seeming discrepancy between 
some of the decisions, and the established principles 
of law, I confess I have paid more attention to the 
general reasoning and principles of law than to par- 
ticular decisions. It must be observed, however, that 
the actions in whicli those decisions took place, 
although in many respects similar to the case before 



MICHAELMAS TERM, 6 GEO. IV., 1825. 257 

US, are not entirely so; those were actions brought 
by husbands for criminal conversation with their 
wives; this is an action brought by a father for the 
seduction of his daughter, and the consequent loss of 
her service. The general reasoning and principles 
of law, as regards the right of action, the quantum of 
damages, and the grounds upon which a new trial 
ought to be granted or refused, apply in some, but 
not in all respects alike to both. 

In both cases the governing principles are the de- 
gree of care and vigilance, or of indiscreet negligence 
or criminal connivance, which may appear in evidence 
on the part of a husband or parent, and which, accord- 
ing to its degree, will have the eflfect of destroying 
the right of action altogether, or of regulating the 
quantum of compensation to which the plaintiff may 
be entitled. 

When the seduction of a daughter is the ground of 
action, I think those considerations apply much more 
strongly than in a case of crim. con. I hold that it 
behoves a parent suing for damages in this sort of 
action, to shew that he has used a reasonable degree 
of parental care and watchfulness over his daughter's 
virtue and propriety of conduct; I mean to say a 
much greater degree of care and circumspection than 
would be required of a husband over a wife's con- 
duct; for besides the ordinary restraints on female 
conduct applicable to the sex in general, a wife is 
under the additional restraint imposed by the moral 
and religious obligations of her marriage vow, with 
all the conjugal ties and duties arising from and inci- 
dent to the married state; her prudence and experi- 
33 ' 



258 MICHAELMAS TERM, 6 GtlO. IV., i8S5. 

ence are Wore to be relied upon, afld her situation 
exetnpts her from those excitements and temptations 
to which a youiig unmarried inexperienced female is 
peculiarly exposed, iespecially when approached, as 
they freiqueOtly are, by seducers under the mask of 
honourable addresses^ I consider it, therefore^ the 
indispeusable duty of a parent to use'^all possible care 
and vigilance, and, if necessary^ to exercise his au- 
thority to prevent a daughter ft-om beitig exposed to 
such temptation, much less to be left alone in bed- 
rooms, of in ahy Other room's or places at unseasona- 
ble hours, and for whole nights With an individual of 
the other sex. A parent knowingly allowing such 
opportunities, betrays not only a foolish and ridicu- 
lous confidence and want of common prudence and 
cit-cumspection, but also such a degree of culpable 
negiigienee as in effect amounts to criminal conniv- 
ance, and, therefore, renders his right of action ex- 
tremely doubtful ; but at all events diminishes his 
claim to damages in an action of this kind for an in- 
jury, which has been the natural Consequence of his 
entire n^lect of a most sacred duty as a parent, and 
the dictates of Ordinary prudence as a man of com- 
mon sense. 

As to the necessity which the counsel for the plain- 
tiff has urged, of young persons being allowed to 
meet at late hours; if it is meant to the extent to 
which that indulgence has been carried in the case 
before us, I deny the existence of any such necessity 
— ^^the parties have been intimately acquainted from 
infancy; they have been bi-ought up in the same 
neighbourhood, a;nd have had daily opportunities of 
forming a thorough estimate of the good and bad 



MICHAELMAS TERM, GEO. IV., 1825. 259 

qualities of each other; and, in short, of all those 
circumstaaees, th€ knowledge qf which is usually con- 
sidered necessary to enable young persons and their 
respective parents to decide on the propriety of the 
intended match, nothing was wanting for aU the 
purposes of honourable courtships, but the usual pro- 
posal of marriage. It does got appear that the pro- 
posal was ever made, either to the young WPfflan Qr 
to her father, the plaintiff. The absence of such pro- 
posal for so unreasonable a length of time, and such 
continuance of intimate intercourse, aud nightly visits, 
instead of induciug confidence, should haye excited 
suspicion and distrust, and should have called forth 
the peremptory commands of the father to desist from 
all such unseasonable interviews. 

I do not by any means excuse the criminal con- 
duct of the defendant, and if the sole question were, 
how much ought he to pay, I should not perhaps 
have thought the verdict too much; but the principgil 
question is, how much is the plaintiff entitled to 
claim, and that consideration must entirely be gov- 
erned by his own conduct as it appeared in evidence. 
Neither do I mean to excuse the easy virtue of the 
young woman; but if she were the plaintiff, and 
could have sued for damages for the irreparable in- 
jury she has sustained, I might perhaps allow to her 
inexperience and weakness that which I cannot con- 
cede to the criminal neglect of her parent. It is an 
established maxim with me, and in which I believe 
I am warranted by law, that no man has a right to 
sue for compensation in damages for any loss or in- 
convenience which has arisen from his own fault or 
criminal neglect pf duty. After mature consicjera- 



260 MICHAELMAS TEEM, 6 GEO. IV., 1825. 

tion, therefore, of this case, with all its attendant 
facts and circumstances as .detailed in evidence, and 
also of the relative situation of the parties, I am of 
opinion the damages given are excessive, and that a 
new trial should be granted. In doing so, I do not 
consider that the province of the jury is at all inter- 
fered with, it is only re-committing the question to 
the consideration of the same tribunal to rectify a 
palpable mistake or misconception of the former jury 
of the grounds upon which their estimate of damages 
should have been made, and this I conceive it is the 
duty of the court to do in all cases, as I have already 
sufficiently shewn from indisputable authority. 

Sherwood, J. — In this cause the defendant has 
applied to the court for a new trial on several grounds 
stated in the affidavit accompanying his motion, one 
of which is on the account of excessive damages. As 
this is the only ground, in my opinion, worthy of ccb- 
sideration, I shall confine my remarks to it alone, 
without touching on the others. That the court have 
the power to grant new trials in all civil actions be- 
tween subject and subject, where the circumstances 
of the case and the advancement of public justice 
require such a proceeding, is already so settled to 
be law, that I do not think it necessary to cite cases 
for the support of the proposition. The court of 
King's Bench in England have refused to disturb 
verdicts apparently too great in actions for criminal 
conversation, because they considered the facts and 
circumstances of those cases as peculiarly within the 
province of the jury to determine, and respecting 
which the court could not well form an opinion, but 
they uniformly recognised the principle of their 



MICHAELMAS TERM, 6 GEO. IV., 1825. 261 

having an undoubted right of granting new trials 
even in the same cases. In Duberley v. Grunning, 
reported in fourth of Dunford and East, which was 
also an action for crim. con., the court refused to grant 
a new trial for excessive damages for reasons already 
mentioned, but they were not unanimous in that re- 
fusal ; Mr. Justice Buller was dissentient, and it ap- 
pears to me that his arguments were stronger and 
more conclusive than those of the other judges. The 
present cause, it is true, is an action of tort, but it is 
not precisely of the same description as that for cri- 
minal conversation; it certainly differs in its nature 
from that in the same degree that the duty of a father 
differs from the dut}'^ of a husband. Here the court 
are not called upon to ascertain the nice bounds be- 
tween fashionable ease or familiarity of manner, and 
licentious or marked attention to a married woman, 
for in this case one gross feature of immorality ena- 
bles the court without difficulty to determine that the 
damages have not been properly measured. I think 
the plaintiff here was guilty of criminal negligence 
in his duty of a parent, and for this reason is entitled 
to less damages than he would have been if he had 
performed his part well. I also think the jury must 
have entirely misconceived that part of the testimony 
which particularly relates to the want of prudence 
and proper attention on the part of the plaintiff as 
the father of a family; it was distinctly in evidence 
at the trial, that the plaintiff allowed the young man, 
the defendant, to remain whole nights with his daugh- 
ter in her bed-room, and that he, the plaintiff, knew 
of the daughter being there. Such conduct leads 
directly to crime, and the father who connives at it, 
or who neglects to interpose his authority for its im- 



262 MICHAELMAS TERM, 6 GEO. IV., 1825. 

mediate prevention, must be less deserving of com- 
miseration than the virtuous and discreet parent. 
What makes the conduct of the plaintiff still more 
inexcusable is, that it does not appear from the re- 
port of the evidence that any proposal of marriage 
was ever made by the defendant to the daughter of 
the plaintiff, or any intimation to the plaintiff of the 
intention of the defendant to visit the daughter as an 
honourable suitor. Had the last fact clearly appeared, 
the plaintiff's want of care would, in a great measure, 
have been excused, and the verdict would have pro- 
bably remained as it is. This fact, however, cannot 
possibly be inferred from the evidence given at the 
trial, because the young woman herself does not pre- 
tend that any proposal of marriage was ever made 
to herself or father, and if any had been made, she, 
of all others, must have, been inclined to mention it. 

It is of the greatest importance to society, that fe- 
males should be brought up in habits of virtuous and 
chaste demeanor ; for such habits will always have a 
decisive influence in correcting any licentious deport- 
ment in the other sex. I do not justify the conduct 
of the defendant in this cause. I think it was crim- 
inal and deserving of punishment ; but as the plain- 
tiff has been negligent in his duty, his claim to dam- 
ages must be lessened in my opinion ; he was not 
warranted in presuming every thing correct on the 
part of the young man who had visited his daughter 
with addresses for such a length of time, without any 
declaration of his ultimate intention. To give such 
a man damages to the extent of what a prudent pa- 
rent would deserve, would be to break down the 
barriers between right and wrong, and to set an ex- 
ample most pernicious in its consequences. 



MICHAELMAS TERM, 6 GEO. IV., 1825. 263 

Upon mature Consideration of all the circumstan- 
ces of this eaSe, I think the opinion of a second 
jury should be taken. 

"Rule absolute. 



MoNally v. Stephekts. 

This court refused to set aside upon motion a ca. sa. which had been 
issued upon judgment more than a year old — no eci. fa. having issued to 
revive it. 

Small obtained a rule nisi to set aside the writ of 
capias ad satisfaciendum issued in this cause, and to 
discharge the defendant out of custody, the same hav- 
ing issued two year^ after the judgment was signed 
— no previous writ of execution or scire facias hav- 
iiig issued. 

Robinson, Attorney-General, shewed cause.— He 
contended that although this was an irregularity, it 
was not to be remedied by setting aside the execu- 
tion or discharging the defendant, but that he must 
proceed by writ of error or action for false impris- 
onment. 

That the case in Salkeld went to this point, (a) 
There the execution issued after the year and day ; 
and yet in an action against the sheriff for an escape 
he was held liable. He contended that the sheriff 
would not have been held liable if the defendant 
could at any time be discharged upon a summary 
application to the court. That it would be other- 
wise where the writ was void on the face of it, as 
wh«re it passed over a whole term. 

(o) Shirley v. Wright, 1 Salk. 273. 



264 MICHAELMAS TERM, 6 GEO. IV., 1825. 

/ 

That the case of Parsons v. Lloyd (a) went to 
shew that false imprisonment was the proper re- 
medy. 

The counsel also cited the cases below, {b) 

Small, contra, contended, that this writ was not 
merely voidable but actually void. 

That the authorities cited related only to the lia- 
bility or otherwise of the sheriff. 

That the defendant could not bring a writ of error 
upon this writ, for that both in that respect and as 
to an action for false imprisonment, it remained good 
until it was set aside. 

That the reason given for a scire facias after the 
year and day is, that a defendant may have an op- 
portunity to plead such matter as may have arisen 
in avoidance of the judgment, (c) 

That here, even if his client had a release, he could 
not plead it. His only remedy is to set aside the 
proceedings. 

Campbell, C. J.— ^This writ has, without doubt, 
been irregularly issued. The question is whether 
it is merely void, or whether the irregularity is only 
to be taken advantage of by writ of error, or in an 
action for false imprisonment. 

It is laid down in Leving, that this irregularity is 
to be remedied by writ of error, and it is said in 
Archbold, that this irregularity is not such an one 
as to render the writ void, but that the party is left 

(a) 2 Blaok 846. (b) 3 Wella 341 Com. Dig. (c) Tidd. 



MICHAELMAS TERM, 6 GEO. IV., 1825. 265 

to other remedy. It appears that the court have not 
e?en a discretion, las the writ is laid down only to 
be voidable. 

Per Curiam — Application refused. 



DORMAN V. EaWSON. 

The ca. sa. lodged in tJie sheriff's office to oliarge the bail, is not a, charging 
in execution. 

Robinson, Attorney-Greneral, moved that the de- 
fendant be dischaj-ged by supersedeas, he not having 
been charged in execution within two terms after 
he had been surrendered in discharge of his bail, 
agreeable to the rule of Hilary Term, 26th G-eo. 
III. 

Macaulay contended that the ca. sa. which had 
been lodged in the sheriff's office previous to the 
defendant's surrender should be considered as charg- 
ing the defendant in execution. 

Robinson, Attorney-G-eneral, observed upon the 
impossibility of considering a ca. sa. which had been 
returned non est inventus as a charge in execution. 

Supersedecip granted. 



Nbvils v. Willcooks. 

In a case where justice has been done between the parties, the court re- 
fused to grant a new trial upon the ground that it had been agreed be- 
tween the contending parties that a third person should have beeh ajiplfed 
to, to settle the subject matter of the action,' which third person being 
under ho legal liability to do so. 

An action of assumpsit tried at the assizes for the 

London district, and a verdict for the plaintiff of 

£40. 

34 



266 MICHAELMAS TERM, 6 GEO. IV., 1825. 

The document upon which the plaintiff declared, 
with its endorsements, was as follows : (the common 
counts were also contained in the declaration :) 

" Left in my hands this 23rd day of June, 1818, 
a note of hand against I. Kilbourn for £10 ; also an 
affidavit against the estate of Colonel Bostwick for 

£30. 

" (Signed,) Inc. Tinbroece." 

" Please to settle the within receipt with Justus 
Willcocks or bearer. 

" Talbot Road, Nov. 9th, 1819. 
" Mr. John Tinbrobck. 

" (Signed,) Thomas Francis." 

" Justus Willcocks has received payment from 
James Nevills for the sum specified on the within 
receipt. Provincial currency. 

" (Signed,) Justus Willcocks." 
"July 24th, 1821. 
" Witness, John Connell." 

This document was proved at the trial, and that sun- 
dry notes of hand had been given by Nevills to Will- 
cocks, as the consideration for its transfer to him. 
It was also proved that there had at the transfer 
been an agreement between the plaintiff and de- 
fendant, that the former should apply to Francis, the 
previous holder of the document, for its amount ; but 
no evidence was given of such application. The 
plaintiff recovered his verdict upon the count for 
money had and received. 



MICHAELMAS TERM, G GEO. IV., 1825. 267 

Macaulay had obtained a rule nisi to set aside the 
verdict, and for a new trial on the ground : 

1st. — That there was no evidence given at the 
trial which could entitle the plaintiff to recover upon 
the count for money had and received, or upon the 
general counts; that the notes given as the considera- 
tion were for money, or that any of them had been 
paid. 

2ndly. — That the plaintiff ought to have applied 
to Francis, the former holder of the document, for 
the amount, previous to an application to the defen- 
dant, that being a condition precedent. 

R. Baldwin shewed cause. — He contended that the 
instrument in question not being negotiable, but a 
mere chose in action, the application to Francis could 
only be considered as a matter of courtesy, but by 
no means a necessary condition precedent. The ap- 
plication would be vain and nugatory, and such as 
the law would not compel, as Francis was not liable 
in law to pay the money to the plaintiff; that it 
might be considered in the same light as an impossi- 
ble condition in a bond, which was void. 

That the policy of the law having said that choses 
in action are not assignable, a condition which pur- 
ported to make one so, might be considered as illegal 
and therefore void, {a) for that the same reasoning 
applied to conditions by parol as to those by deed. 

Macaulay, contra, contended the condition not to 
be one which could be considered as impossible or 

(a) Bac. Abr. Tit. Vendor. 



268 MICHAELMAS TEEM, 6 GEO. IV., 1825. 

illegal; it was not that the plaintiff should sue Fi^ncis, 
but that he should try to get the money from him, 
which might be done by application. 

That courts of law as well as equity will take no- 
tice of choses in an action; therefore no illegality or 
impossibility can be inferred from an agreement in 
that respect. 

That if plaintiff was bound to apply to Francis it 
was a condition precedent, and he ought not to re- 
cover without doing so. 

The counsel was not satisfied that it was a roiere 
chose in action, but that it partook of the nature of a 
bill of exchange, the essentials of which it had ; and, 
if so, the plaintiff should have shewn an application 
both to the drawer and eiidorser of this instrument. 

That the whole of the evidence was defective. 
There was none that would entitle the plaintiff to 
recover on the money counts; none that the notes 
stated as a consideration were for money, or that they 
were ever paid. 

That the matter was a special contract, which 
should have been stated and proved. 

R. Baldwin, in reply, contended that this instru- 
ment could not be considered as a bill of exchange, 
which could only be for a sum certain; therefore, 
any application to any of the parties through whose 
hands it had passed, wbuld in a legal point of view 
be absurd. 



MlfeiiAEiMAS *ERM; 6 GEO. IV., 1825. 269 

That as no adv^iltagfe wdWd be gained to the de- 
fendant by a new trial in fhi§ case, and that as no in- 
justice had been done, the court \^ould dischat-ge the 
rule. 

Campbell, C. J. — There are some objections which 
might weigh in this case ; but as justice has been 
done, and it appears that the defendant would not 
gain any advantage by a new trial, and as the appli- 
cation to Francis would be only a voluntary request, 
the court think that the verdict should stand. If the 
demand upon Francis was one which could be en- 
forced by law, the court would have been of a differ- 
ent opinion. 

Per Curiam. — Rule discharged. 



Doe eve. (km. of Burger, v. 



Robert Baldmn stated to the court that this action 
of ejectmeUt had been commenced in the vacation 
preceding a nonissuable term, agreeable to a modern 
rule of 'the Court of King's Bench in England, and 
applied to the court as to the adoption of that rule 
in this court. 

The Chief JustIcb observed that the Court con- 
sidered that all rules of the English practice were 
adopted up to the date of the rule of this court of 
Michaelmas Tei'in, 4 G-eo. lY. 



Naglb v. Eilts. 

A circular flourish with the word (seal) inscribed, is not a legSl seiil. 

This was a case of debt upbii bond, tried at the 
assizes for the London District. The instrument pro- 



270 MICHAELMAS TERM, 6 GEO. IV., 1825. 

duced in evidence was not executed in the usual 
manner by having a seal of wax or wafer, covered 
with paper, but had a circular flourish with the word 
"seal" written within it in the following manner, 
(seal); a verdict was taken for the plaintiff, subject 
to the opinion of the court as to the validity of such 
a substitute for the usual form of sealing. 

Washburn had obtained a rule nisi to set aside the 
verdict and enter a nonsuit upon the cases in the 
margin, (a) 

Robert Baldwin shewed cause against the nonsuit. 
— He stated that seals were at first used to authenti- 
cate contracts from the parties not being able to 
write; but submitted that writing being in common 
use, a seal like <the one in question contained all the 
advantage that one of wax or paper could. 

That it was in fact better, as not being liable to 
fall off or be taken away. 

That there was a material distinction between a 
seal like the present and an [L.S.], the latter not in- 
dicating the parties^ intention that it should be con- 
sidered as a seal, whereas the form under considera- 
tion evidenced that intention perfectly. 

That the court should support this mode of seal- 
ing, on the ground of its being a very common usage 
of those parts of this province where a rigid adher- 
ence to forms could not be expected for want of pro- 
fessional advice. 

(a) 3 Coke, 169 ; Lightfoot T. Butler, an Exchequer case ; 2 Leonard, 21; 
1 Bos. & PaU, 360. 



MICHAELMAS TEEM, 6 GEO. IV., 1825. 271 

That the notarial seals of the lower province being 
merely a stamp, without any adhesive substance, 
afforded a strong presumption that such seals were 
in use in England. That the decision, of Mr. Kent, 
which had been referred to, was not law in this pro- 
vince, and that there was no decision which went the 
length of saying that the form of seal under considera- 
tion was invalid. That the case in Bosanquet and 
Puller did not go directly to the point, but as to the 
propriety of admitting evidence of a colonial custom. 
That there being no authorities to decide in the pre- 
sent case, it must rest upon its own foundation. 

That the dictum of my Lord Cohe, which requires 
wax or some adhesive substance in the formation of 
a seal requires an impression, and if adhered to 
strictly would destroy the validity of many seals 
which have never, in modern times at least, been 
doubted to be good. 

Coke requires, too, a strict adherence to the form 
of indenting deeds, which has also been dispensed 
with ; courts in modern times having laid down that 
the least perceptible irregularity or inequality in the 
edges of the paper may constitute the instrument an 
indenture. 

That there being nothing intrinsically more solemn 
in waxing than indenting, there should be no more 
occasion for a rigid observance in the one case than 
in the oth^r. 

Fer Curiam. — Rule absolute. 



[272] 
HILARY TERM, 6 GEO. IV., 1825. 



Present : 

The Honourable Chief Justice Campbell. 
Mr. Justice Sherwood. 



Smith v. Rqlph, one, &c. 

An attorney in this province is privileged to sue and be sued at York. 

Macaulay moved to change the venue in this action 
(trover) frona the Home to the London District, upon 
the usual affidavit. He cojitended, that although in 
England attorneys might lay their venue at West- 
minster in all transitory actions, yet as there s?ere 
district offices in this country, where they might and 
usually did file their proceedings, they could not be 
considered as being in attendance upon the court at 
York, and that, therefore, they were not entitled to 
the same privilege with attorneys in England. 

Robert Baldwin, contra, contended, that the cir- 
cumstance of the district office could not take away 
the attorney's privilege — of which opinion wg,s the 
court. 

Per Curiam. — Application refused. 



Brown v. Hudson. 

The judge's private seal no evidence of the proceedings of a court of justice. 

The defendant had been discharged under an in- 
solvent debtors' act by the judge of Ontario county, 



HftARY TEEM, 6 GEO. IV., 1826. 27S 

in the state of New York. He was afterwards ar- 
rested in this province for the same cause of action. 

Washburyi moved to discharge the defendant and 
enter an ezonoretur upon the bail piece. In support 
of his motion he produced a certificate under the 
private seal of the judge, that the defendant had been 
discharged under an insolvent debtors' act of the 
state of New York. 

Sedper Curiam. — A private seal is not evidence 
of the transactions of a court of justice, and a certifi- 
cate under the seal of the governor of the state should 
also be produced to shew that the person represented 
to be a judge tills that character. 

Per Curiam. — Application refused. 



MoLeod v. Bellars. 

A capias cannot issue upon a verdict in trespass without a judge's order. 

Robert Baldwin had obtained a I'ule nv>i to set 
aside a bailable capias ad respondendum, upon whicli 
the defendant had been arrested upon a verdict ob- 
tained in an action of trespass, and which had been 
issued without a judge's order. 

Per Curiam. — Rule absolute. 



Moore v. Malcolm. 

Case and not trespass is the proper remedj^ against a sheriff ^'or selling 
goods under afi.fa. before the eight days are' expired. "' 

Declaration in trespass for taking the plaintiff's 

goods. 
35 



274 HILARY TERM, 6 GEO. IV., 1826. 

Pleas.— 1st. General issue. 

2nd. Justification under a fieri facias directed to 
the sheriff of the London district. 

Eeplication.— That defendant sold the goods with- 
out giving the eight days' notice required by the 
provincial statute, {a) 

Eejoinder.— That notice was given. 

« 

Roh''rt Baldwin had obtained a rule to shew cause 
why the judgment should not be arrested, on the 
ground that the action should have been case and not 
trespass ; the cause of action being a mere nonfeas- 
ance, which could not be the subject of trespass. The 
counsel cited the six carpenters' case as establishing 
this doctrine, {b) 

Mucaulay shewed cause. — He allowed that by vir- 
tue of \hQ fieri facias, the sheriff, his bailiff or deputy 
were justified in seizing the goods; but contended, 
that if he sold them without giving the notice required 
by the statute, he became a trespasser by relation; 
for every interference with another person's property 
not warranted by law was a trespass. 

That the sale could only be justified by an observ- 
ance of the forms required by law, for under a justi- 
fication a defendant must shew that he has strictly 
pursued the authority given him by the law. 

That the language of the statute was clearly pro- 
hibitory. He shall not proceed to sell. That had 

(a) 49 Geo. ILL, c. 4, s. 15. (6) Reports M. T. 8th,, Jao. lat. 



HILARY TERM, 6 GEO. IV., 1826. 275 

the words been that " he shall give eight days' uo- 
tice before he sells," the neglecting to do so might 
have been argued to be a nonfeasance only. 

That the defendant is not charged with a trespass, 
because he has not given notice of sale; but because 
he has sold the plaintiff's property, contrary to the 
express prohibition of the law. 

That the case is just the same as if the sheriff had 
seized and sold immediately. If he was justified in 
the one case he was in the other; both were equally 
contrary to law. 

That the principle in the case of the six carpenters, 
relied upon by the counsel for the defendant, did not 
militate against, but supported his arguments. It was 
that a mere nonfeasance or not doing, could not be- 
come the ground of an action of trespass. The not 
paying for the wine was a mere nonfeasance, and the 
cases referred to were cases of nonfeasance only. 

That the question in the present case is, whether 
the statute is conditional or prohibitory, or only 
directory. 

That if the law says that the sheriff shall not sell 
until he has done some previous act, it is clearly 
conditional and prohibitory. 

That the sheriff was a trespasser ah initio, having 
abused an authority in law, for that the law in that, 
case makes the party a trespasser ab initio by rela- 
tion to the first taking. 



276 HILARY TERM, 6 GEO. IV., 1826. 

That the present case was analagous to that 6f dis- 
tress by the common law, where if the distrainer 
abuses a distress, he becomes a trespasser ah initio. 

That the officer having in this case committed an 
active abuse of his authority by selling contrary to 
law, has become a trespasser ab initio. The counsel 
cited the authorities below, (a) 

Eohert Baldwin contended, that the question in this 
case was simply whether a subsequent omission made 
the sherifif a trespasser in the outset. 

That the construction attempted to be placed .upon 
the provincial statute was too subtle. 

That to maintain trespass there must have been 
an interference with a property to which one has no 
right; but that in this case the sheriff had a property 
in the goods at the time of sale, and, therefore, coulA 
not be a trespasser, for no person can trespass upon 
his own property, though that property may be only 
a special one. 

That the application of the doctrine of distress by 
the common law to this case is erroneous, the prin- 
ciples are different; a party need not distrain, and 
therefore if he abuses a distress, he is made a tres- 
passer by relation ; but sheriffs must execute pro- 
cess, and therefore are eserupted from actions of 
trespass by relation. 

That as it is not contended that the officer could, 
in this case, have been a trespasser by the common 

(a) 4 Mod. 391 ; Hammonas, N. P. 161. 



MtAK? fmrn, 6 GEO. IV., 1826. 277 

law, he cannot toy the statute, which position is well 
supported bj Lord Ettenbwou^h's construction of the 
2 Geo. II., c. 19. Trespass d#s not lie, his lordship 
says, for subsequent omissions in the conduct of a 
distress, if the original taking was lawful, {a) 

That as it is not contended that the plaintiff has 
no other remedy, the sheriff should upon grounds of 
policy be protected from actions of trespass by rela- 
tion. 

That the doctrine respecting abuse of authorities 
in law does not apply in this case. To be subject to 
tr«*Sp3SS by relatioii for such abuse, a defendant must 
have committed a positive, and not a negative act of 
irregularity, which the counsel contended was not 
the case in the present instance. 

Chief Justice. — During the argument of this ease, 
I felt some hesitation upon the particular expression 
of ttie statute, but taking it altogether, I consider 
that this action should have been case and not tres- 



P6r Curium. — Rule made absolute. 



H'iCKALL V. OrAWFOKD. j" vi'/^ / ( 

An alias /. fa. may issue against lands returnable at such a distance of time 
as to alfoW tBe Sheriff to adVeftise, &e. 

Washburn stated to the court, that in this case a 
writ q{ fieri facias against the lands and tenements 
of the defendant, had been issued and was returnable 
a1)out a year ago, and proceedings stayed thereon by 

(0) Selwyn's N. p., 1231. 



278 HILARY TERM, 6 GEO. IV., 1826. 

agreement between plaintiff and the defendant. The 
counsel applied for an order for an alias writ o^ fieri 
facias returnable in Easter Term next. 

The court gave leave to the plaintiff to issue such 
writ returnable in Trinity Term nest, observing that 
that would give sufficient time to give the notice of 
sale required by the provincial statute. 



DORMAN V. EaWSON. 

k fieri facias may issue against a defendant's goods, although he may be dis- 
charged from prison, for not having been regularly charged in execution. 

The defendant had been surrendered in discharge 
of his bail, and had last term been discharged out of 
custody upon the ground that the capias ad satisfa- 
ciendum which had issued to charge him in execution 
had not been issued within two terras after his sur- 
render. The plaintiff afterwards issued 2t. fieri facias 
upon the same judgment. 

• 

Robinson, Attorney-General, in the former part of 
the term obtained a rule nisi to set aside this writ of 
fieri Jacias, upon the ground that the defendant hav- 
ing been in execution under a capias ad satisfacien- 
dum, the plaintiff was not entitled to another execu- 
tion upon the same judgment, unless the first had 
been rendered ino^ffectual by the death or escape of 
a defendant, (a) 

Macaulay shewed cause. — He contended that the 
defendant should not be allowed to say at one time, 

(o) See Tanner v. Hague, 7 T. R. 420 ; Clarke v. Clement and English, 6 
T. R. 625 ; Cohen v. Cunningham, 8 T. R. 123 ; Line v. Lowe, 7 East 330. 



HILARY TERM, 6 GEO. IV., 1826. 279 

that the writ of capias ad satisfaciendum was a nullity, 
and thereupon procure his discharge, and at another 
time, that it was a good and effectual writ, viz., when 
he wished to prevent the plaintiff from obtaining the 
benefit of his judgment by an execution against the 
defendant's property. 

That the defendant in this case stands as if no exe- 
cution had been issued against him. 

That no case can be found to shew, that ^ fieri 
facms may not issue after a capias ad satisfaciendum 
has been set aside by the court as irregular, but only 
in cases where the defendant had been released, or 
the nature of the execution had been attempted to be 
changed by the plaintiff's own act. None to apply 
the rule to an execution, which had not been a legal 
satisfaction to the plaintiff. 

That the remedy by action on the judgment which 
had been mentioned, as the proper proceeding by 
the counsel on the other side, is much discounte- 
nanced by the law, as productive of no additional 
' benefit to a plaintiff, and as being unnecessarily ex- 
pensive to a defendant, the law always countenancing 
the quickest and cheapest remedy. 

That the plaintiff's judgment not having been satis- 
fied, he was entitled to his remedy, as may be clearly 
collected from the case of Topping v. Ryan, {a) 

That the case of Lime v. Lowe, cited on the other 
side, only went to shew that a defendant could not 

(ffl) 1 T. R. 273. 



28Q HILARY TEEM, 6 GEO. IV., I9?6. 

be arrestad alter he had been released for wmt oi 
halting been charged iu execution in proper time, 
and was by fair inference in favour of the plaintiff. 

Jtobinsap,, Attorney-Qeneral, contr^,. — In this case 
the defendant was actually in execration by a writ 
issued at the suit of the plaintiff, and which writ the 
sheriff was bound to obey, who wpuld accptdiagly 
have detained him until removed by habeas cqrny^, 
or discharged by the court; and he was in fact in 
actual custody for several mofiths. 

The case of Topping v. Ryan does not apply ; 
there the defendant attempted, by a plea in bar, to 
shew that the plaintiff could pot bring an action upon 
his judgment, which is not here contended. 

Macaulay, in reply, contended, that the defendant 
was in custody upon his surrender, and would have . 
continued so, whether the capias ad satisfaciendum 
had issued against him or not, until discharged as he 
was by the court. That writ the court have pro- 
nounced ineffectual. 

The plaintiff, therefore, has not had his remedy, 
and is still ejititled to it ; that Mr. Justice. BuUer's 
dictum in Topping v. Eyan cleq,rly shews thaf the 
plaintiff is still entitled to his remedy, to all intents 
and purposes, e?:cept as to the arrest of the defen- 
dant's person. 

The intention of the law is, first to protect defen- 
dants from being harrassed by a second arrest, and 
secondly to give plaintiffs those remedies for their 
debts which are next in decree. 

Per Curiam.— -'RvAs discharged. 



hilary term, g geo. iv., 1826. 281 

Dalton v. Botts. 

An item in an account stated, being a sum charged for the price of a lot of 
land, does not make it incumbent on a plaintiff to prove the agreement 
respecting such land to have been made in writing. 

This was an action of assumpsit upon an account 
stated, tried at the assizes for the Midland district, 
and a verdict for the plaintiff. 

The account stated, which was proved at the trial 
to have been acknowledged by the defendant, con- 
tained, among other items, a charge of £50 as being 
the balance of a sum due upon the purchase of a lot 
of land. 

Robinson, Attorney-G-eneral, moved for and ob- 
tained a rule nisi to set aside the verdict, on the 
ground that such a charge should not have been 
proved without proving also, that the agreement for 
the purchase of such land had been made in writing 
agreeable to the 4th section of the Statute of Frauds. 

Macaulay shewed caus6. — He contended that the 
object of the statute being to preserve evidence of 
executory contracts by requiring them to be in writ- 
ing, that it is only when you want to support such 
contracts that the statute operates, but that it is well 
known to be otherwise when a contract has been 
executed by either party. 

That it is equally clear that when a balance of ac- 
count is struck and acknowledged, that there is no 
occasion to go into particular items, whether they are 
such as should have been proved by parol or written 
evidence, for an, account stated and acknowledged is 
an agreement by the parties that all the articles are 

true, and is in this case conclusive. 
36 



282 HILARY TERM, 6 GEO. IV., 1826. 

That the same law would hold if one of the items 
of an account had been a charge for the payment of 
a debt due to a third person, for it is upon the im- 
plied promise to pay an acknowledged account that 
the action is brought, and not upon particular items. 

That the case in East was in point where an agree- 
ment for the purchase of things, savouring of the 
realty, was considered as taken out of the statute by 
a subsequent acknowledgment of the debt, which 
was held sufficient in an action upon an account 
stated to support the demand. 

That the case in Bosanquet and Puller was also in 
point, where it was held that a special agreement 
executed by appraisement (which is analogous to an 
account stated) need not be proved, the amount due 
having been ascertained by such appraisement, and 
that it is unnecessary to state a special agreement 
which has been executed where the action arises oiU 
of something collateral to it. 

Robinson, Attorney-Greneral, contra, contended, 
that the question in this case was, whether the par- 
ties themselves could dispense with the requisites of 
the Statute of Frauds. 

That neither where a party is to be made liable 
for the debt of another, or a sale of lands is intended, 
can any subsequent agreement or account stated dis- 
pense with the necessity of shewing an original charge 
in writing. 

That where the statute says you ^an bring no ac- 
tion for the sale of lands, this provision must affect 



HILARY TERM, 6 GEO. IV., 1826. 283 

the buyer as well as the seller ; but the counsel on 
the other side attempts to make it apply to the buyer 
only. 

The very charge in his declaration, as well as in 
his account stated, is for land, and includes that kind 
of uncertainty and floating charge which the statute 
applies to. 

That the case in Bast does not apply. It was re- 
duced to a charge for the price of trees after they 
had been felled and taken away by the defendant, 
supported by evidence of his acknowledgment of 
the price. 

That the case respecting the appraisement is as 
little in point ; the value of certain crops were ap- 
praised in the presence of both parties, and the de- 
fendant refused to pay, upon which indebitatus 
assumpsit was brought for the value, and held good 
by the court, who considered the case as not within 
the statute, the original special agreement being mere 
inducement. It was in fact a mere action for goods 
sold. 

Had no appraisement taken place, Mr. Justice 
Bulkr says that the decision would have been other- 
wise. Here, if a transfer and conveyance had been 
proved to have been made to Botts, the case might 
have been altered, but no such evidence was given. 
It rests merely upon the acknowledgment of an ac- 
count stated. 

That if an admission could take a case out of the 
statute it might constantly be evaded — such evidence 
might readily be procured. 



284 HILARY TERM, 6 GEO. IV., 1826. 

That it was considered that the courts had gone a 
great way in allowing the note of an auctioneer to 
be evidence of a sale ; but in this case there was 
nothing proved in the shape of a note or memo- 
randum. 

That the case in Selwin was much the same with 
that in Bast. It was treated by the court as a mere 
action of assumpsit to recover the price of a quantity 
of potatoes, not, as in the present case, an action for 
the price of an estate in fee simple. 

That the fair inference to be drawn from all the 
cases is, that the statute must be pursued where an 
action is brought to recover the purchase money of 
a fee simple. 

Macaulay, in reply, agreed that the parties could 
not by their own agreement dispense with the provi- 
sions of the Statute of Frauds; but contended that in 
the cases referred to, the courts consider whether 
the matter before them is within the statute or not; 
that they have determined in the negative, and that 
this case is analogous. 

That in this case as^in that of Bosanquet and Pul- 
ler, and in the others cited, if the go-by had not 
been given to the statute by the subsequent arrange- 
ments, the original agreements would have been sub- 
ject to its provisions. 

That an account stated and acknowledged upon a 
balance due for. land, in no way differs from a note 
given for the same consideration, of the validity of 
which there can be no doubt, though a note of hand 
is no note in writing under the Statute of Frauds. 



HILARY TEEM, 6 GEO. IV., 1826. 285 

That it is clear from Lord Kenyan's dictum in East, 
that it matters not what the items of an account 
stated and settled consist of. 

That there being no case to shew that an action 
like the present cannot be maintained, is a strong 
argument in the plaintiff's favour. 

The court were of opinion that this case was not 
within the statute. 

Eule discharged. 



Blebkbe v. Myers, and Myers' Executors, &c. 

In an action for breach of covenant for quiet enjoyment, freedom from in- 
cumbrances, &c., it is sufficient for the declaration to Btate, that one A. 
B. was seised before the conveyance to plaintiff, and that plaintiff was 
obliged to pay him £800 to obtain possession, without stating eviction by 
A. B., a plea stating that defendants, executors, as aforesaid, submitted 
to arbitration, does not imply that they submitted in their character as 
executors. 

Covenant. — The first count of the declaration 
slated, that the testator, by a certain deed poll, did 
grant, bargain, sell, alien, transfer and for ever con- 
firm, &c., the parcel of land, &c., to the plaintiff, his 
heirs, and assigns, &c., and did thereby impliedly 
covenant : 

1st. — That the grantor was seised in fee, &c. 

2ndly. — That he had full power and lawful autho- 
rity to grant, &c. 

3rdly. — That the grantee, (plaintiff,) his heirs and 
assigns, for ever, should enjoy free from all incum- 
brances whatsoever. The declaration made profert 
of the deed, alleged entry of the grantee, and assigned 
as breaches on this count : 



286 HILAEY TEEM, 6 GEO. IV., 1826. 

let.— That the defendant (the grantor) was not 
seised, &c. 

2ndly. — That he had not full power to convey, &c. 

3rdly. — That the plaintiff did not enjoy free from 
incumbrances; for that one Deforest was before, &c., 
seised, &c., and claimed possession, &c., or the pay- 
ment of £300, which, to procure possession, the 
plaintiff paid, therefore covenants broken. 

The second count set forth the like covenants not 
implied as in the first, but as absolute covenants, 
profert of deed; entry of plaintiff ; the like breaches; 
without any averment of title in another; eviction or 
disturbance. 

The third count similar to the second. 

The fourth count similar to the second and third, 
and averring title in Deforest, his demand of posses- 
sion or payment of £300, and the payment thereof 
by plaintiff to preserve possession, &c. 

Plea.^ — -Ist. Non est factum. 

2ndly. — That defendant was seised and had fall 
power to convey, &c., protesting that he did not 
covenant. 

3rdly. — That after the date of the deed of the al- 
leged covenants and the alleged breaches thereof, and 
after the death of the testator, and before the com- 
mencement of the suit, &c., the plaintiff of the one 
part, and defendants, executors, as aforesaid, of the 



HILARY TEEM, 6 GEO. IV., 1826. 287 

other part, submitted themselves by mutual bonds of 
arbitration, conditioned well and truly to stand to, 
&c., the award of P. W. and T. N., arbitrators, &c., 
namedi &c., to arbitrate, &c., of and concerning all, 
and all manner of actions, cause and causes of action, 
and actions, &c., which at any time or times thereto- 
fore were, had been moved, &c., by or between the 
said parties; the award to be made under hand and 
seal at a limited time. That within that time said 
arbitrators did, under their hands and seals, make 
their award of and concerning the matters submitted 
to them, viz., that all actions, &c., touching the said 
premises, should cease and be no further prosecuted, 
and that each of the said parties should pay their own 
costs, tod that defendatits should pay to the plaintiff, 
within twelve months, £92 14s. 5d., and thereupon 
plaintiff and defendants should in due form of law 
execute each to the other releases sufficient in law 
for the releasing by each to the other, of all actions, 
&C., to the day of submission, averring that within 
the said twelve months the defendants performed all 
matters and things awarded on their part to be per- 
formed, and paid the said sum of £92 14s. 5d., to 
the plaintiff, and he accepted, and received of and 
from them the said sum in full contentment and sat- 
isfaction of the said award, and of the matters sub- 
mitted as aforesaid, in and by said bonds of arbitra- 
tion. 

The plaintiff took issue upon the first and second 
pteas. 

Demurrer to the third assigning for causes: 
1st.— Want of profert of the arbitration bond. 



288 HILABY TERM, 6 GEO. IV., 1826. 

2ndly. — That it is not shewn whether the bond 
was destroyed or in existence. 

3rdly. — That it was so pleaded that the plaintiff 
Qould not have oyer. 

4thly. — G-eneral uncertainty. 

Joinder. 

Macaulay, in support of the demurrer, contended, 
that the plea was bad, inasmuch as the defendants 
are not therein stated to have entered into the arbi- 
tration in their character as executors, the language 
therein used being descriptive only; it merely stat- 
ing that defendants, executors, as aforesaid, submitted 
themselves, leaving out the monosyllable "as" be- 
tween the words defendants and executors, (a) 

This position was not only supported by the case 
of Hendrill v. Roberts, but also by the rule, that if 
a party sues out process generally, he may declare 
as executor, but that if he issues it as executor, he 
cannot declare in his private character, for in the 
former case he narrows, but in the latter he enlarges 
his demand, {h) 

2ndly. — ^That the plea is bad, as it does not set out 
that the subject matter of the dispute was ever sub- 
mitted ; for if a party in pleading arbitrament, does 
not shew that the subject matter was submitted, he 
gives the go-by to the very gist of the plea; that this 
appears from the form of that plea given in Ohitty 

(a) HendrUl v. Roberts, 5 East 150 ; 2 Bos. & Pull. 424. (6) 1 B. & P. 383. 



HILARY TERM, 6 GEO. IV., 1826. 289 

and other pleaders, as well as from the reason of the 
thing. 

That had an averment of the subject matter being 
arbitrated appeared in the plea, it might have cured 
the omission relied upon in the first objection; but 
that without the averment the plea was clearly bad 
on both grounds. 

Baldwin, contra, premised that his argument would 
resolve itself into two branches; for that if he could 
either shew that the defendant's plea was good, or 
that the plaintifif's declaration was insufiicient, judg- 
ment must be for the defendant, (a) 

First, as to the declaration, he contended that the 
instrument set forth conveys no estate whatever, 
and when the estate fails the covenants appendant to 
the estate fail also, for the words did grant, bargain, 
sell, and for ever confirm, did not of themselves make 
a4eed of bargain and sale. To constitute a bargain 
and sale, a deed must be made by indenture, and en- 
rolled, ip) and in this province registry is required, 
as a substitute for enrolment, (c) so that the instru- 
ment set forth instead of being an indenture regis- 
tered, is a deed poll not registered, and therefore 
bad, and the defendant's covenants consequently fail. 

The counsel cited the cases below, {d) 

That the declaration sets out no feoffment, for it 
does not appear that any livery of seisin was had. 

(o) 1 Chitly, 662. (6) Stat. Hen. VIII. (c) Pror. Stat. 37 Geo. III., o. 8. 
(d) Northcote v. Northcote, 1 Seth. 199 ; Capenhurst v. Gapeahurst, Lord 
Ray. 388; 1 Saunders, 252, N. 3 ; Touchstone, 204, 15. 

37 



290 HILARY TERM, 6 GEO. IV., 1826. 

Perhaps it may be sufficient in pleading a feoffment 
to state that A. B. enfeoffed 0. D., without setting 
out a deed; but here a deed is actually set forth with- 
out stating any livery, without which feoffment can- 
not be ; nor does any thing appear in the deed as set 
out upon oyer to presume livery, nor has it the 
operative word dedi; so that this instrument is not a 
bargain and sale, feoffment, fine, recovery, lease and 
release, or in fact any species of conveyance acknow- 
ledged by the law, and not being a conveyance of 
real estate the real covenants fail. 

That the deed set out upon oyer (be it what it 
may) does not contain the covenants alleged in the 
declaration; nor is this aided by setting forth those 
covenafits, as implied in the words "grant, bar^in, 
sell, &c," for there are no precedents of such plead- 
ing to be found; the words dedi concessi et dimissi in 
leases for years, imply a covenant for quiet enjoy- 
ment, but not in deeds in fee. (a) 

That even if there were a warranty m this deed, 
no action of covenant would lie, for such does not lie 
upon a warranty, either in deed or in law; the remedy 
being by warruntia chartce and voucher, and more- 
over a warranty is void if the estate be void, and 
there must be the word dedi to make a warranty; the 
word concessi only does not, and dedi is not in this 
deed, {h) 

That a feoffment implies a warranty during the life 
of the feoffer only, by the statute de Bigamis. The 
feoffment at common law only raises an implied war- 

(o) 3 Com. Dig. A. 4, Tit. CoTenant. (i) 2 Bac. Abr. «7 ; 7 Bac. Abr. 
229, 231 ; Nokes' case, 4 Coke ; Touchstone, 181, N. 8. 



HILAKY TERM, 6 GEO. IV., 1826. 291 

ranty, which feoffment was not by deed; a feoffment 
by deed implies a warranty during the lile of the 
feoffer, but such deed must operate by the word 
dedi. Here there is no dedi in the deed, so as 
to imply warranty even during the life of the feoffer, 
and the action, too, is against executors for a breach 
during the life of the testator. 

Xhat the covenant for enjoyment free from all in- 
cumbrances whatsoever, is ^so large that the court 
will not imply it, and even if such a covenant was 
expressed, the court would seek for matter to re- 
strain it. {a) 

That neither title in any other, nor eviction or dis- 
turbance is alleged in the second and third counts; 
and in the first and. fourth counts, where the covenant 
for enjoyment free from incumbrances is alleged, ihe 
breaches are not sufficiently charged, as not shewing 
an eviction or disturbance, the compromise with De- 
forest, the stranger, not being sufficient. 

That general covenants must be restrained by 
special ; eviction must be alleged and proved, or 
some entry or actual disturbance must be shewn, (b) 

That this action does not lie against executors, for 
covenant real determines with the estate. 

In support of the plea, he contended that the cases 
cited on the other side were not in point; that that 
of Henshall t. Roberts and others was solely on the 
point of misjoinder of counts by the plaintiff ; that in 

(a) Saunders, 178, A. N. 8. (i) 2 Bos. & Pull, 13 ; 2 Saunders, 181, 6. 



292 HILARY TEEM, 6 GEO. IV., 1826. 

the present case, the point in question was the appli- 
cability of the bar as pleaded; there is no misjoindesr. 
It is simply and essentially one matter, viz., payment 
of £94 16s. 4d., in discharge and satisfaction. 

That whether the defendants plead this payment, 
as made by them as executors, or not, is of no mo- 
ment; that it is a good plea in their own right, as 
well as in their capacity of executors, in any action 
of the plaintiff, who with them, as appears by the 
plea, submitted all matters in the completest manner. 

That if all matters in difference are submitted, it 
extends to a demand as executors, (a) 

That the court ^ill intend that all matters were in 
the consideration of the arbitrators, and that if the 
facts were otherwise, the plaintiff should have shewn 
it, and have joined issue upon the facts. The counsel 
also cited the case below as in favour of the plea, {b) 

Macaulay, contra, after premising that nothing had 
been advanced by the counsel on the other side, 
which could at all support the defendant's plea, in 
the face of the authorities cited to shew that it was 
defective, contended in support of the declaration: 

That the covenants set out were express, but if 
they were not so, the words grant, bargain, and sell 
contained an implied covenant, (c) 

That no words could make a covenant stronger 
than that of the habendum, as set out upon oyer, " to 

(a) Com. Dig. Arbitration,!). 4; Strange, 1144; Croke, James, 447. (6) 
Smith V. Johnson, 15 East, 213. (c) 15 East, 530 ; 1 Salk. 137 ; 2 13. & P. 
13 to 28, and notes. 



HILARY TERM, 6 GEO. IV., 1826. 293 

hold free from incumbrances to him and his heirs 
for ever; they were an express covenant in themselves, 
no form of words being necessary to constitute a 
covenant; it may be effected by a recital or a condi- 
tion ; and a covenant may be considered as a condi- 
tion, (a) 

That the counsel on the other side was mistaken 
in contending that the covenants declared upon were 
void for want of registering the deed; for, 

That there was a material distinction between cove- 
nants that went to the title itself, and those which 
were collateral to or dependent upon it; or those to 
which title. was a condition precedent; as in case of 
a title for quiet enjoyment, upon which covenai^t 
would perhaps not lie without a title to support and 
precede it, or the covenant for payment of rent which 
depended upon a precedent title; that the law as laid 
down by Mr. Justice Butter, viz., that if the princi- 
pal thing failSj^that which is dependent on it fails 
also, applies to the case of rent, &c., but not to cove- 
nants for title ; to suppose which to be void, because 
the title was bad, would be a great absurdity; they 
being entered into for the express purpose of guard- 
ing against defects in title, {b) 

That it would be as unreasonable to require a per- 
son to register a deed which conveyed no title, as it 
would be to require a lessee to make an entry and 
so commit a trespass before he could sue his lessor 
for demising to him an estate, over which he had no 
power, as laid down in Holden v. Taylor, (c) 

(a) Mellorie's Entries, 2 vol. 92. (i) Owen 136, 4 T. R. 617 ; Chambers, 
440. (c) Hobbes 12 ; Chitty. 



2H HILABt TEEM, 6 GEO. IV., 1826. 

That there is no occasion to state livery in plead- 
ing as laid down in Chitty. 

That there having been an entry in fact was a suf- 
ficient livery at common law; for livery need not be 
by the ceremonies formerly in use, as delivery of a 
twig, &c. 

That the deed declared upon might well be taken 
to be a feoffment, (supposing the objection to want of 
indenting to be of any weight,) for that, although the 
proper and usual words are " give, grant and enfeoff," 
any others of equal import will do, as "grant, bar- 
gain, sell, &c," as in the present case, as laid down 
in Cruise, (a) where a bargain and sale considered 
'Void as such for want of enrolment, was held to be 
a feoffment. 

That the law which required an estate to support 
a warranty, alluded to by the defendant's counsel, 
did not apply to covenants for title. 

That eviction, by process of law, was not necessary 
to be shewn (as had been urged by defendant's coun- 
sel) in an action of covenant for a ^od title, or upon 
a covenant for freedom from incumbrances, appeared 
frdm the case in the term reports, (b) where it was 
held that in assigning a breach of covenant for quiet 
enjoyment, it is sufficient to allege that at the time of 
demise to the plaintiff, one B. had lawful right and 
title to the premises, and evicted plaintiff, wrthout 
shewing what title B. had, or that he evicted plaintiff 
by legal process. And in another case in the same 
reports, where it is held, that A. B. lawfully claiming 
title under defendant entered, &c. 

(o) Cruise 55, 6. (6) 4 T. B. 617 ; S T. R. 278, 



HILARY TEEM, 6 GEO. IV., 1826. 295 

That this position was further established in the 
case of Sherwood v. Johns, in this court, (a) where 
a plea of non-eviction was, upon demurrer, held bad, 
in an action upon a covenant that the plaintiff should 
hold free from incumbrances. 

That in the present case the title was not merely 
incumbered, but actually bad, which made it a 
stronger case. 

That these cases went also to shew that the title 
set out in Deforest, was sufficient to support an ac- 
tion against defendants, for that plaintiff did not enjoy 
free from incumbrances. 

That as to the last objection, that this action would 
not lie against executors, the ©nly cases where thai 
rule prevails, is where the covenant is not broken in 
the testator's life-time ; but that the ^.etion undoubt- 
edly lies where it is. 

The counsel for the defendant would have replied 
to the arguments adduced in support of the declara- 
tion, but was not allowed to do so by the court. 

Chief Justice. — I consider that the counts upon 
the implied covenants, if objectionable, may be con- 
sidered as surpliusage. > 

That the words of the deed are in themselves suf- 
ficient to raise the actual covenant set forth. It is 
dear that the land was to be conveyed " free of all 
incumbrances." 

(a) 307 



296 HILARY TERM, 6 GEO. IV., 1826. 

I consider also that the plea is bad, as not stating 
the submission to be made by the defendants in their 
character as executors. 

Sherwood, J. — The defendant having raised objec- 
tions to the plaintiff's declaration, the que'stion to be 
first determined, is whether any of the counts in the 
declaration are sufficient to support the action; for it 
is a general rule in law, that judgment shall be against 
the party whose first pleading is bad in substance. I 
shall give no opinion on the implied covenant insisted 
on by the plaintiff's counsel, because the declaration 
contains an express covenant that the testator had a 
right to sell. 

The fourth count sets out an express covenant for 
the validity of the title in my opinion. There are no 
set form of words necessary to constitute a covenant. 
If the intention of the parties clearly appears in the 
deed, it should be carried into effect, in whatever 
part of the instrument it may be found. The words 
"grant, &c," coupled with those in the habendum, 
" to have and to hold, &c," amount clearly to an as- 
sumption or agreement that the plaintiff was to hold 
the estate free from incumbrances. It could be taken 
by the parties in no other view. 

With respect to the plea, if it is bad in part, it is 
bad altogether; pleadings are to be taken most strongly 
against the party pleading. It appears to me that it 
does not contain sufficient certainty, which at least 
should be to a common intent; the words leave it 
doubtful whether the defendants submitted to arbitra- 
ment in their character of exectitors, or in their own 



aiLARY TERM, 6 GEO. IV., 1826. 297 

right, for the ward executors may be coiisidered as 
descriptive of the persons only. 

The plea states that the defendants, "executors as 
aforesaid," (referring evidently to the description in 
the introductory part of the' plea,) submitted to arbi- 
tration all matters in dispute betwe'en them'SClVes 
and the plaintiff. It should have stated distinctly, 
that they submitted to arbitration all matters in dis- 
pute between themselves, as executofs, if the fact was 
so, for the court cannot intend the fact in favour of 
the plea. The payment stated to have Been made is 
not set outwith such certainty as to cause a presump- 
tion that the money was paid to them in their capa- 
city of executors. The same phraseology is used in 
this part of the plea, and, of course, leaves the same 
doubt. Upon the whole, I think the plea is not suf- 
ficiently certain in the particular already stated. 

As to the objection that this action of covenant 
could not lie against executors, I consider it suffi- 
ciently answered by the covenant not having been 
broken during the life of the testator. 

Per Curiam. — Judgment for the plaintifi"; 



38 



[298] 
EASTER TERM, 7 GEO. IV., 1826. 



Present : 

The Honourable Chief Justice Campbell. 
Mr. Justice Sherwood. 



Cameron and Wife v. McLean. 

Where the plaintiff's attorney consented to a nonsuit, under an apprehen- 
sion that he would be allowed to move for a new trial, the court granted 
the same, although his consent had not been coupled with the leave of the 
judge at nieiprius to move. 

This was an action for a libel, and the plaintiff had 
been nonsuited at the assizes under the following cir- 
cumstances: the libel upon which the action was 
brought had not been read to the jury, and the late 
Chief Justice, who tried the cause, stated it as a fatal 
omission and offered the plaintiff a nonsuit. The 
plaintiffs' counsel refused it; but upon the Chief Jus- 
tice proceeding to charge the jury to find a verdict 
for the defendant, the plaintiffs' attorney consented 
to take the nonsuit. 

Macaulay, in a former term, had obtained a rule 
nisi to set aside the nonsuit and grant a new trial, on 
the ground that the defendant understood he should 
have liberty to apply for a new trial, and that in a 
conversation with the plaintiffs' counsel it was so un- 
derstood; and that the plaintiffs' attorney believed it 
was with the understanding of the defendant's coun- 
sel also. 

Robinson, Attorney-General, shewing cause, relied 
upon the strict practice, contending that there were 



EASTER TERM, 7 GEO. IV., 1826. 299 

no cases in which the party having consented to a 
nonsuit was at liberty to move to set it aside. 

The court considering that the case had not been 
fairly brought before a jury; that the parties' coun- 
sel had originally refused the nonsuit, and that it had 
been acceded to under a misapprehension of the 
plaintiffs' attorney, made the 

Rule absolute. 



King v. Robins. 

A witness to a cognovit having left the province, leave was given to enter 
judgment. 

Robert Baldwin moved for leave to enter up judg- 
ment upon a cognovit, upon an affidavit stating that 
the witness attesting the execution had gone to Eng- 
land. 

Application granted. 



The King v. John McDonel. 

A copy of an indictment for high treason may be had by consent of the 
Attorney-General. 

Smail applied for an order from the court for a 
copy of an indictment for high treason, which, upon 
the Attorney-General's consenting, was ordered by 
the court. 



Morris v. Randall. 

The court refused to order a plaintiff to pay to a defendant's executors the 
costs of not going to trial, pursuant to notice. 

In this case an application had been made during 
the life of the defendant, since deceased, for costs for 



3i(^ EASTER TEEM, 7 GEO. 1V„ J^. 

not having pi!oeeede!(J "to trial agreeable to notice 
whicli ha^ been ordered-— such costs not having been 
paid during the life of defendant. 

Robert Baidivm moved, on behalf of the executors, 
for an order upon the plaintiff to pay these costs to 
them, or for an attachment against the plaintiff for 
their non-payment. 

The court, observing that the attachment for non- 
payment of costs, for not going to trial pursuant to 
notice, was more in the nature of a civil process than 
a punishment for a contempt to the court, and that 
the cause was at an end by the death of one of the 
parties, which would preclude an application in any 
cause pending in the court, 

Refused the application. 



The KisQr v. The Welland Canal Company. 

Whereby a clause pf a prior sta,tute, the two directors having the smallest 
number of votes of the five chosen in » former election, are declared to be 
ineligible at any subsequent election, and by a subsequent statute, the 
pumber of direotprs wasfi^ed at seven, and that statute named the persons 
who were to constitute the board until the next election. The court held, 
that two of the board having vacated their seats by non-residence, ren- 
dered it ni^ecessary for two of the jremaining five to vacate their seats as 
having the smallest number of votes at the subsequent election. 

This was an application to the court for a rule 
nisi, for a mandamus to the president and directors 
of the company, to admit to the office of directors for 
the present year, Janies Gordon and James Crooks, 
Esquires, they being two stockholders duly qualified 
to be elected directors in the room of two of the pre- 
sent directors who bad the fewest number of votes 



EASTEB TEEM. 7 GEO. IV., 1«26. SOI 

at the last election for the said company, held at St. 
Catharines, on the 3rd of April last; the two of the 
present directors having the smallest number of votes 
at said election, being by law ineligible, and the said 
James Crooks and James G-ordon having the next 
greatest number of votes. 

By the 29th section of the act for incorporating the 
Welland Canal Company, its affairs are to be man- 
aged by five directors, including the president, who 
are to hold their offices for one year — such directors 
to be stockholders and inhabitants of the province, 
and to be elected on the 1st Monday in April in 
every year — the election to be by ballot, and the 
five persons who should have the greatest number of 
votes to be directors. The same section further 
enacts that two of the directors which should be 
chosen at the preceding year, excepting the president, 
shall be ineligible to the office of director for one 
year after the expiration of the time for which they 
shall be chosen directors; and in case a greater num- 
ber than three of the directors, exclusive of the pre- 
sident, who served for the last year, shall appear to 
be elected, then the election of such person or .per- 
sons above the said number and who shall have the 
fewest votes, shall be considered void, and such other 
of the stockholders as shall be eligible and shall have 
the next greatest number of votes shall be considered 
as elected in the room of such last described person 
or persons, who are hereby declared ineligible, and 
the president for the time being shall always be con- 
sidered as eligible to the office of director, but stock- 
holders not residing within the province shall be in- 
eligible. If any director absents himself from the 



302 ^ EASTER TERM, 7 GEO. IV., 1826. 

province, and ceases to be an inhabitant thereof for 
the space of six months, his office shall be considered 
as vacant — vacancies happening between the days of 
election to be filled up by directors. 

By a subsequent statute (a) passed the 13th April, 
1825, so much of the last clause as requires the elec- 
tion of five directors, is repealed ; and it is enacted, 
that the company should elect in like manner and 
times, as in the former act, seven directors, one of 
whom to be president. By the 13th clause, the Hon- 
ourable James Irvine and Simon McGrilvray, Esquire, 
in addition to the five directors already elected under 
the first statute, are to constitute the directors of the 
said company until the next general election. 

The affidavit to ground the application, stated that 
Messrs. Dunn, Merritt, Boulton, Keefer, and Allan 
were directors chosen in pursuance of the first statute 
in the year 1825. 

That on the 3rd of April last — the last meeting of 
the stockholders for the purpose of electing directors, 
Messrs. Dunn, Allan, Boulton, Eobinson, Keefer, 
Clark, and Merritt, were elected — the applicants, 
Crooks and Grordon, having the next number of votes; 
and on the part of the applicants, it was now con- 
tended by Washburn and Dixon, that two of those 
directors who had been chosen last year were ineli- 
gible, and should be withdrawn from the list, and that 
the applicants having the next number of votes, 
should be considered as duly elected ; for that Messrs. 
Irvine and McG-ilvray having been appointed by the 

(a) 6 Geo. IV., c. 2, s. 6. 



EASTER TERM, 7 GEO. IV., 1826. ' 303 

last statute, and not having in fact ever been elected, 
did not come under the words of the statute, which 
are, that two of the directors which shall be chosen 
at the preceding year shall be ineligible at the sub- 
sequent election; and, therefore, that their having 
withdrawn or having been omitted in the number of 
directors in consequence of their not being residents 
in this province, did not satisfy the words of the 
statute, which are that two of the directors which 
shall be chosen at the preceding year shall be ineli- 
gible at the subsequent election. 

Robinson, Attorney-Greneral, contra, contended 
that that part of the first act which declares that any 
number of persons, more than three, who were direc- 
tors in the former year, should be ineligible, and 
their election 'void, must be considered as virtually 
repealed by the subsequent statute, which appoints 
seven directors instead of fire, and that the law as it 
now stands must be taken to be that five of the 
former directors may be re-elected. 

That the secession of Messrs. Irvine and McGil- 
vray are spfiBcient to satisfy the statute, for that no 
argument can be drawn from the distinction attempted 
to be made between their appointment and that of 
the other directors; they were all appointed directors 
by the last act as much as Messrs. Irvine and Mc- 
Gilvray. 

Chief Justice. — I cannot accord to the distinction 
which has been taken between the persons chosen at 
the first election, and the two gentlemen added by 
the second act; and as nothing I consider has been 



304 EASTEE TEEM, 7 GEO, IV., 1826. 

shewn to convince me that the directors chosen at the 
last meeting of the stockholders are ineligible, I do 
not consider the court as called upon to interfere 
with the election. 

Per Curiam. — Application refused. 



Welbt v. Beard. 

Officer employed in executing the process of the court discharged from 

arrest. 

In the case the defendant having been employed 
to execute a bench warrant issued from this court, 
was, while in the performance of that duty, arrested 
at the suit of the plaintiff, in tbe Midland District. 
Upon the application of counsel, — '■ — , tJie court 
directed the arrest to be set aside. 



Wright v. Landell. 

Judgment roll amended by adding costs. 

Macaulay moved upon an affidavit stating the error, 
that the judgment roll in this cause (and which had 
been completed last term) might be amended by add- 
ing the costs, which had been omitted by mistake. 

The court observing that such an application might, 
perhaps, have been entertained, if made in the same 
term in which the judgment had been entered, refused 
the application. 



easter teem, 7 geo. iv., 1826. 305 

White v. Hutchinson. 

New nisiprius record made up, the original haying been destroyed by fire. 

Small moved that the plaintiff be permitted to 
make up a new nisi prius record upon an affidavit, 
stating the former one to have been consumed with 
iire. (a) 

Application granted. 



MOFFATT AND ANOTHER V. LOUCKS. 

A person who assigns his property to trustees for the benefit of his creditors 
considered as a competent witness to a bond given to those trustees by 
one of his debtors, and an [L.S.] need not be inserted to a deed set out 
upon oyer. 

This was an action of debt upon bond tried at the 
assizes, and a verdict for the plaintiff. 

The Chief Justice, who tried the cause, reported, 
that Davies and Company, merchants, at Montreal, 
had assigned their property to the plaintiffs, for the 
benefit of their creditors, and that the defendant had 
given his bond to the plaintiffs for the amount of the 
debt due to Davies and Company. 

That Davies, the only witness to this bond, being 
absent at the trial, his hand writing had been proved, 
and upon such evidence a verdict had been found for 
the amount of the bond, subject to the opinion of the 
court upon the inadmissibility of Davies as a witness, 
upon the ground of his being interested in the re- 
covery of its amount. 

The defendant's counsel had also objected that 
there was no (L. S.) or other mark indicative of a 
seal to the bond, as set out upon oyer. 

(a) 2 strange, 1264 ; Arobibold, 243. 

39 



IQ6 EASTER TpBM, 7 (JEQ. IV., 182?,. 

Robinson, Attorney-G^eHeral, ia support of the ver- 
dict, contended that an (L. S.) or other such mark 
was perfectly unnecessary. Ho observed, that it 
was only of late that it had become usual in practice 
to insert the names of witnesses; that all that is re- 
quired to be given upon oyer is the contents pf tlie 
instrument. 

That if a defendant has any doubt as to the instru- 
ment being sealed, he may satisfy himself by inspec- 
tion. 

That the instrument is stated to be under seal in 
the pleadings previous to the oyer, which is a suffi- 
cient notice to the party that it is so sealed. 

As to the second point, he contended, that no in- 
terest hq,ving been proved in Davies, the witnpss, np 
objection to his conipetency could be taken. 

That in point of fact his interest was as much de- 
stroyed by the assignment, as that of a bankrupt by 
the commission; although the bankrupt, being inter- 
ested in having a dividend to a certain amount, is 
obliged to release that expectation to make him com- 
petent. 

That in this case, Davies having assigned his pro- 
perty without reservation to the plaintiffs, and a bond 
having been given to. them by the defendants to se- 
cure the original debt, which was upon simple con- 
tract, it had merged in the bond, and the present 
demand could be sued for by the plaintiffs, and by 
them only, they only having the legal interest. 



EASTER TERM, 7 GEO. IV., 1826. 30? 

That the only instrument from which it raiglil have 
been inferred that Davies had any future interest, 
proved the contrary, as it shewed that the debta due 
by him and his fifni were equal to the property 
transferred. 

He observed, that had it been necessary to use 
Davies' testimony, to prove the particulars of the 
original debt, a question might with more propriety 
have been made as to his competency, but as it was 
merely nsed to prove the execution of the bond, and 
partial payments thereon, there could be no doiibt 
upon the subject. 

Washburn, contra, contended, that Davies b'eiug 
the person legally entitled to sue for this demand, at 
the titiie the bond was given, could not be considfetfed 
as disinterested at the time he becam<3 a Mtiiess, and 
was therefore incompetent. 

That there was nothing in the case from wMdb to 
presume that Davies had released his interest in any 
surplus which might arise, in which case he was 
clearly interested and incompetent. 

Chief Justice, — As to the first point in this case, 
I consider that there is nothing in it to induce the 
court to set aside the verdict. The statement in the 
declaration that the instrument is under seal, coupled 
with th6 copy of its contents given upon oyer, is suf- 
ficient to shew the defendant the nature and ptifpdtt 
of the instrument. If hfe had any doiibt of the truth 
of the sttitein^nt in tie declaration, he fii^M bave 
ex^ffiined the deed itself. 



308 EASTER TERM, 7 GEO. IV., 1826. 

As to the second objection, I consider that Davies' 
interest, if any, was too remote to affect his compe- 
tency, and that the plaintiffs being the only persons 
who can sue at law upon this instrument, the verdict 

must stand. 

Per Curiam. — Eule discharged. 



.Smith v. Sumner and Nevils. 

Semble, that a rule to plead is necessary where bail is filed according to the 

statute. 

Small moved for a rule nisi to set aside the pro- 
ceedings in this cause, upon an affidavit stating that 
no common bail piece had been filed according to the 
statute; that no affidavit of -service of the process had 
been filed, and that no rule to plead had been given 
— which latter he contended to be necessary in cases 
where, as in the present, judgment is signed by de- 
fault, and this, from the words of the act — which are 
in case of the plaintiff's filing common baU for tlie 
defendant — that he is to proceed thereon as if such 
defendant had put in and perfected bail in the action. 

Although a determination of the latter point was 
unnecessary, the two first objections being sufficient 
to set aside the proceedings, the court intimated an 
opinion that the position of the counsel was correct. 

Eule absolute. 



Radclippe v. Small, one, &c. 

The court will not issue an attachment against an attorney to compel him 
to pay over money to his client which he had in fact forwarded, but which 
had been lost by accident. 

Robert Baldwin moved for the order of the court 
upon Mr. Small, to pay Mr. Eadcliffe a sum of money 
recovered for him under the following circumstances: 



EASTER TERM, 7 GEO. IV., 1826. 309 

Mr. Eadcliffe had directed him to forward the 
money by return of boat, the steam-boat which had 
brought the order. Mr. Small had enclosed the 
amount in a letter directed to Mr. Eadcliffe, at Nia- 
gara, and given it to a passenger in the boat, a re- 
spectable person, who left it at a tavern at Niagara, 
in charge of the landlord, in whose tavern it was lost 
or stolen. 

Mr. Baldwin contended, that the order to send 
money by return of boat, must be intended to mean 
by the persons having charge of the boat and not by 
a passenger, and that, therefore, the court would 
order Mr. Small to re-pay the money. 

The court, considering the case ,did not call for 
. summary interference, 

Eefused the application. 



Beardslet v. Clench. 

Whether an attorney suing as an unprivileged person is entitled to charge 

fees. 

The plaintiff in this case was au attorney of this 
court, and had sued the defendant in person, but 
without describing himself as an attorney or officer 
of the court. 

At the taxation of costs upon the judgment which 
he had obtained in the suit, the clerk of the Crown 
had allowed him to charge his fees as an attorney. 

Small moved for an order upon the clerk of the 
Crown to re-tax the costs, contending that Mr. 



31 EASTER TERM, 7 GEO. IT., 1826. 

BeardSley, not having sued as a privileged person, 
was not entitled to charge fees. 

Application granted. 



Brock V. McLean, Esquire, Sheriff. 

A plea to an action for an escape, setting out " that tlie ca. sa. was hot en- 
dorsed with the sum set out in the declaration," held bad upon special 
demurrer. 

This was an actio* against the defendant as sheriff 
of the Midland District for an escape. 

The declaration set out the judgment — the capias 
ad satisfaciendum; the caption and escape; also that 
the writ was duly endorsed for bail for £119 13s. 9|d. 

Plea. — 1st. General issue. 

2ndly. — That the ca. sa. was not so endorsed with 
such sum, in manner and form as set forth in the 
declaration. 

G-eneral demurrer— joinder. 

Macaulay, in support of the demurrer, contended, 
that the plea was no answer to the declaration; that 
it admitted the very gist of the action, the judgment 
caption and ca. sa. and escape. 

That the endorsement was immaterial as to effect- 
ing the efficacy of the writ, and was only required 
by statute for a particular purpose. 

That even if it were material, a misstatement of 
its amount in the declaration could only be tafeen 



EA?TER TERM, 7 GEq. IV., 1§3S. 811 

advantage of ^.t ^he trial by the produetion gf the 
writ, when the variance between it and the declara- 
tion would appear. 

That this plea could not be sustained ; for a plea 
in bar must go to the whole actipn-r-rmust shew that 
plaintiff has no right to recover; that a plea to a n^ere 
variance had never been heard of, uqless where a 
specialty is the ground of action, and the oyer set 
out varies from the instrument, (a) 

Robinson, Attorney-G-eneral, contra, contended, 
that this plea contained a direct negative pf a point 
material to the action; that the averment of an en- 
dorsement to levy being necessary, was to be col- 
lected from all the forms of pleading in this action 
given in Chitty and other pleaders, who would not 
have set out such an averment if they had not con- 
sidered it so, for it is 'their constant direction to avoid 
inserting unnecessary averments. 

That the endorsement being a proceeding positively 
directed by the legislature, cannot be dispensed with. 

In a case in East (b) it is admitted, that the pay- 
ment of the sum endorsed upon the writ is a satisfac- 
tion, and, therefore, it ought to be endorsed, that the 
defendant may have the benefit of it. 

That supposing the defendant had in pleading 
singled out a particular fact, which amounts to the 
general issue, and which it is admitted may be incor- 
rect, still it can only be taken advantage of upon 
special demurrer, (c) 

(a) Chitty, Title Abatement, 465 ; Sethold, 565 ; 2 Wilson, 394, 6. (b) 
U East, 4^8, (c) Com. Dig. E- 14. 



312 EASTER TERM, 7 GEO. IV., 1826. 

That by demurring generally the plaintiff has ad- 
mitted the writ was not endorsed, which is admitting 
that a material fact is wanting to enable him to re- 
cover. 

That it was not to be contended that nothing could 
be pleaded in bar which did not gp to the escape, for 
nultiel record might be pleaded, or any other matter 
which would excuse the sheriff. 

That it is impossible that the plaintiff could, at the 
trial, be allowed to shew an endorsement, which he 
has acknowledged the want of by a geiieral demurrer, 
and, therefore, to allow the parties to go to trial 
would be nugatory. 

That the endorsement was a fact which could not 
be dispensed with, and, even if it were otherwise, it 
has become so by having been set out in the decla- 
ration. 

That having become material, he must prove it or 
fail at nisi prius. 

That as the not proving it would be fatal, and it 
being a fact material and traversable, and the want 
of such fact being admitted by the general demurrer, 
it is impossible that the plaintiff can have judgment 
upon this record. 

Macaulay, in reply, insisted that the defendant's 
counsel had not shewn that any matter could be 
pleaded in bar which did not put an end to the 
action. 

That the case of Moore v. Malcolm, argued in this 



EASTER TERM, 7 GEO. IV., 1826. 313 

court, where it was determined, that although the 
sheriff had neglected the positive directions of an act 
of parliament, such neglect did not subject him to an 
action of trespass, or annul his proceedings under a 
fi.Ja., was in favour of the plaintiff. 

That, if setting out the endorsement was material, 
it can only be taken advantage of at the trial as a 
variance, and, if immaterial, it may be struck out, 
and if so it need not be proved. 

That the plea of nul tiel record, which had been 
instanced as a proper plea in this action, is a com- 
plete bar to the suit, and not at all resembling the 
present. 

That the argument which had been drawn from 
the admission of the want of endorsement by the 
general demurrer, could have no weight, as the plead- 
ings upon demurrer were not attended to at nisi 
prius. 

That the plea being substantially bad, may be 
taken advantage of on general demurrer. 

Chief Justice. — This is an action against the 
sheriff of the Midland District, for the escape of a 
person charged in execution upon a ca. sa. returned 
cepi corpus. The declaration states the judgment in 
the original action, and that a writ of ca. sa. was 
taken out thereupon by the plaintiff, against the ori- 
ginal defendant, John White, who was taken there- 
upon; that before delivery of the ca. sa. to the sheriff, 
the sum of £119 13s. 9 Id., for which he was to de- 
tain him in custody, was duly endorsed on the writ 
40 



314 EASTEE TERM, 7 GEO. IV., 1826. 

pursuant to the statute. To which the sheriff pleads: 
1st. The gfineral issue, aad 2udly, in bar to the ac- 
tioij, that the ca. sa. was not so endorsed with such 
sum in manner and form as set forth in the declara- 
tion, but without specially denying all the material 
allegations in the declaration, or the delivery to him 
of the writ of ca. sa., or the having the defendant in 
custody upon it or the escape — to this plea the plain'- 
tiff demurs, as not beipg a sufficient plea in bar, or 
denying the material cause of action — and I am of 
opinion the demurrer is right, the fact of the escape 
being the gist of the action, and not the sum en- 
dorsed, which I conceive as to this purpose to be 
quite immaterial; at common law, the writ itself 
without any endorsement is binding on the sheriff to 
keep the defendant in custody, unless for defects ap- 
pearing on the face of it. It is true, the statute 3 
Geo. I., c. 15, positively requires the plaintiff to en- 
dorse the sum he means to levy, but that is for no 
other purpose than to direct the sheriff in chargiag 
his poundage, and is immaterial in all other respects; 
and if the ca. sa. is otherwise unobjectionable, and 
the facts of the arrest and subsequent escape are 
sufficiently set forth and supported, a wrong endorse- 
n^ent, or the want of any endorsement will not vitiate 
the writ, and therefore is no bar to the action. This 
I think maybe collected from various authorities, and, 
amongst otliers, from those of Lord Holt, and Mr. 
Justice Eyre, in the case of Waites v. Briggs, 2d 
Setheld, 565. 

Sheewoop, J.— The statute of Geo. I. recited, that 
poundage in many instances amounted to more than 
the debt, m^ for the sole purpose of preventing that 



EASTER TERM, 7 GEO. IV., 1826. 315 

injustice, it was enacted tbat the amount of the levy 
should be endorsed. Such endorsenaent, however, 
does not affect the authority of the sheriff to arreSt 
the defendant, but he derives his right to do so from 
the writ itself. I therefore concur in opinion with 
the Chief Justice. 

Judgment for the plaintiff. 



Sawyer v. Manahan. 

Whether a foreigner forwarding prohibited goods to a place in the Uiiited 
States so situated as to furnish a strong presumption tliat they would be 
smuggled, can maintain an action for the price of such good^. 

This was an action by the plaintiff as payee, against 
the defendant as the drawer of a bill of exchange, 
tried at the assizes for the Midland District, and a 
verdict for the plaintiff for £400. 

The prinqipal ground of defence set up at the trial 
was, that the note was void, having been given for 
a smuggling transaction. 

The facts adduced in support of which" Were, that 
the defendant being a British subject, resident at 
Kingston, had there, by means of an agent, cohtracted 
with the plaintiff, an American subject, for the pur- 
chase of sixty chests of tea (same being a prohibited 
article) contained in a warehouse at Gravelly Point 
— a small village on Lake Ontario, in the United 
States, and opposite to Kingston, a commercial town 
situate upon the banks of lake Ontario in this country. 

There was no direct evidence that the defendant 
assisted in smuggling the goods, or even knew that 



316 EASTER TERM, 7 GEO. IV., 1826. 

.they were smuggled into this country; the defen- 
dant's case resting upoU the strong presumption, that 
the contract being made in this country for the pur- 
chase of prohibited goods, warehoused directly oppo- 
site to the place where the contract was made, in a 
small village at which, and its environs, there could 
be no demand for them, they must necessarily have 
been purchased for the purpose of smuggling them 
with the knowledge of the plaintiff. 

The defendant also placed considerable reliance 
upon the statement of Eussel, the plaintiff's agent in 
the transaction, who deposed at the trial that he had 
no doubt but that the tea was intended to be smug- 
gled. The Chief Justice, who tried the cause, ex- 
pressed a doubt at the trial whether the circumstance 
of the contract being made in this country with a 
British subject, might not, with the other facts in the 
case, distinguish this from that of Holraan v. John- 
son, (a) as in that case the contract of sale had been 
made as well as completed abroad; but he charged 
the jury that he considered the mere knowledge of 
the plaintiff, a foreigner, and residing abroad, that 
the tea was intended to be smuggled, unless he gave 
some assistance in the smuggling, was not sufficient 
to take away his right of action. 

Robinson, Attorney-G-eneral, had moved for and 
obtained a rule to shew cause why the verdict should 
not be set aside and a new trial granted on the 
ground of misdirection, and that it was contrary to 
evidence. 

Macaulay now shewed cause. — He contended that 

(o) Cowper, 341. 



EASTER TERM, 7 GEO. IV., 1826. 317 

this case came within the law as contained in the case 
of Hohnan v. Johnson, (o) in Cowper, viz., that the 
mere sale of prohibited goods abroad to a British 
subject, clid not contaminate the contract, although 
the seller knew that they were to be smuggled into 
England. 

That selling the tea at Kingston did not alter the 
case, as it was not contrary to any law in Upper 
Canada so to do, not even if plaintiff knew it was to 
be smuggled, unless he gave assistance to the smug- 
gling; that the contract was completed by delivery 
at Gravelly Point, and the plaintiff had nothing fur- 
ther to do in the, transaction; that Eussel's supposi- 
tion that the tea was to be smuggled, did not alter 
the case, nor were the presumptions derived from 
the local situation or size of the village of Grravelly 
Point to be at all taken into consideration, for that 
nothing but assistiug the smuggling could bar the 
plaintiff of his right of action. 

Robinson, Attorney-Greneral, contra, after premis- 
ing the importance of the question, and urging the 
necessity of preventing foreigners from coming to 
this country for the purpose of vending prohibited 
goods, and afterwards sheltering themselves from 
risk because no direct proof could be adduced of their 
actually assisting in the importation of the prohibited 
article, and observing that the case in Taunton was 
against authorities — 

He contended that this case was very different 
from that of Holman v. Johnson. There the parties 

(a) Cowper, 341 ; 5 Taunton, 181. 



318 B ASTER TERM, 7 GEO. IV., 1826. 

were both resident in a foreign country at the time 
of the contract made, and the circumstance of both 
being foreigners was considered as material by the 
court — it was legal in its inception and completion. 
But that in this ease, instead of its being a contract 
legally entered into abroad, it was one illegally en- 
tered into at home — a contract for the sale of prohi- 
bited articles, with the intentioii of smuggling them 
into this country. 

That the pretence of the plaintiff being a foreigner 
cannot avail him, lor, at the time of the contract 
made, he was in this country, for although foreigners 
making contracts in their own country are not 
obliged to take notice of the laws of this, yet, when 
here, they are bound to do so, being for the time 
subjects to this government. 

That as in the different smuggling cases reported 
in the books, facts are addnced to prove the scienter 
and invalidate the contracts, so the facts in this case 
furnish a full and strong presumption against the 
plaintiff. The contract made at Kingston with a 
British subject — the goods totally prohibited (not 
merely subjected to duty) by the laws of this coun- 
try, were housed at G-ravelly Point on the foreign 
frontier, a small village where it was in the greatest 
degree improbable that such a quantity of the article 
could either be consumed or sold, except in this 
country where it was prohibited — the evidence of 
Eussel, the agent, that he had no doubt but that the 
goods were purchased with the intention of smug- 
gling, and not a shadow of proof to rebut these vio- 
lent presumptions, which could readily have been 



EASTER TERM, 7 GEO. IV., 1826. 319 

had if the circumstances of the eventual disposal of 
this tea had warranted it. 

He contended that these circumstances were as 
strong to taint the transaction as those of the anchors 
and slings in Olugas v. Pampelona, (a) or the packing 
of the lace in Weymell v. Read, (b) In that case the 
plaintiff's counsel admitted, that if he had been a 
British subject he could not have recovered; and, in 
thp present case, the plaint^ having been in King- 
ston at the time he made the contract, must at the 
time be considered as such. 

That the fact of the goods being an article prohi- 
bited (and not merely subject to duties) coupled with 
the fact of the plaintiff's coming to this country for 
the purpose of selling them, distinguished this case 
materially from that of Holman and Johnson; and 
that the facts should fairly upon grounds of public 
policy (upon which the decision of these cases must 
frequently turn) be considered as aiding and assist- 
ing in the smuggling. 

The counsel cited the case of Wilson v. Saun- 
ders, (c) as shewing that strong presumptions are 
sufficient to shew an illegal intention without direct 
proof. 

Macaulay, in reply, contended, that no principle 
could be extracted from all the cases which could in- 
validate the plaintiff's right of action. 

That in all of them it appeared that the plaintiff 
knew the goods were to be smuggled; that they in 

(a) 4 T. R. 466. (A) 5 T. R. 599. (c) 1 B. & P. 267. 



320 EASTER TERM, 7 GEO. IV., 1826. 

some shape assisted; aad that they were actually run. 
But for any thing that had appeared in this case, the 
goods might be still at G-ravelly Point. 

That the case last cited did not apply, for there 
an act had been done in pursuance of the intention 
to re-land the goods in England, viz., putting them 
on board a cutter, which was only licensed to sail be- 
tween certain points of the English coast. 

That this matter was analogous to the charge of 
treason, which could not be proved but by some 
overt act. 

Per Curiam. — Rule absolute. 



Blacklock v. McMartin. 

Semble, that a returning officer, whose conduct has been impeached, is not 
entitled to his expenses as a witness before a committee of the House of 
Commons, although he was summoned to attend by the Speaker's warrant, 
in the same manner as other witnesses. 

This was an action of assumpsit brought for the 
expenses of the plaintiff, as a witness attending a 
committee of the house sitting upon a contested elec- 
tion. 

The plaintiff was returning officer. Misconduct 
had been imputed to him in that office, and he had 
beep summoned .in thovsame manner with other wit- 
nesses, viz., by the Speaker's wai*rant. His return 
had been set aside, but no vote of censure had been 
passed upon him by the house. The cause was tried 
at the assizes, and a verdict for the plaintiff, for the 
amount allowed to witnesses in the courts of law, 



EASTEB TERM, 7 GEO. IV., 1826. 321 

subject to the opinion of the court, whether the plain- 
tiff, under the circumstances of the case, had a right 
of action. 

Robinson, Attorney-Greneral, for the plaintiff, con- 
tended, that although in criminal cases witnesses had 
no right ot action for their expenses, yet that the 
present was more analogous to a civil proceeding, 
the party requiring the testimony was not only con- 
tending ^or a valuable and honourable privilege, but 
would also, if he succeeded, be entitled to parlia- 
mentary wages. 

That it could not be supposed that a witness, who 
was poor and unable to pay his expenses, must either 
beg his way to York or subject himself to punishment 
by the house. 

That the G-renville act allowing costs must extend 
to the expenses of witnesses. 

That there was nothing in the particular case which 
could deprive this plaintiff of his right tO costs; as 
returning officer he need not have attended at York 
without the subpoena. He has performed the service 
required of him, and is entitled to a reasonable com- 
pensation. 

Macaulay, contra, contended, that witnesses before 
committees of the house were not entitled to an ac- 
tion for their expenses under any existing provisions, 
but, that even if they were, that the case of the plain- 
tiff was very different— his conduct as returning offi- 
cer beitig impeached by the petition to the houSe he 
was bound to attend. 
41 



322 EASTER TERM, 1 GEO. IV., 1826. 

That there is no precedent of this action to be 
found, though none more likely to happen, which fur- 
nished a strong presumption against it. 

That the provision of the statute of Elizabeth, 
which requires a tender of expenses to persons sub- 
pcenaed, applies to witnesses incourts of record only. 

That inability, whether proceeding from sickness 
or poverty, would no doubt be considered as an ex- 
cuse in this case, as may be inferred from the case 
of Battye v. G-resley and others, {a) which arose out 
of a case before commissioners of bankrupt. It was 
there held, that there was no occasion to tender the 
witness his expenses, and that poverty might be an 
excuse for non-attendance. 

That the case in East, in the matter of Price, a 
prisoner, went a considerable length to shew that a 
person subpoenaed before a committee of the house, 
was not entitled to an action for his expenses, or it 
would have been unnecessary for the court to have 
required the undertaking of the party requiring his 
attendance to pay them, {b) 

That the defendant having petitioned on the ground 

of public interest, makes this case more analogous to 

'a criminal than to a civil proceeding, in the former 

of which witnesses have no right of action for their 

expenses. 

Robinson, Attorney-Greneral, in reply, insisted that 
as no misconduct was imputed to plaintiff, as retur'n- 

(o) 8 East, 318. (6) 4 East, 587. " 



EASTER TERM, 7 GEO. IV., 1826. 323 

ing officer, further than is usual in all election peti- 
tions, his case was the same as that of other witnesseSi. 

That the want of precedent was a very slight ob- 
jection, such as would apply to any other witness, 
for that in his experience he did not recollect this 
sort of action ever having been brought. 

That it is not by the statute of Elizabeth, (a) but 
by common law, that a witness is entitled to his ex- 
penses, that statute only requiring a tender of ex- 
penses, and in default thereof, exempting the witness 
from the penalties of non-attendance i m posed by the act. 

That the G-renville act could only intend to give 
parties the means of obtaining evidence, not that they 
should be at liberty to summon all the people of the 
country without paying them for their attendance. 

That the case in the matter of Price, is no prece- 
dent against this action, but that the principle of it, 
namely, that a witness ought to have his expenses, 
applies. 

That parties being allowed their expenses under 
the Grenville act, they must be entitled to the ex- 
penses of their witnesses as well as any other, and 
they would be taxed to them by the clerk of the 
Crown in Chancery, upon a presumption that they 
must have been paid. 

Chief Justice. — The present motion is on a point 
reserved at nisi prius, and the question is, whether 
a witness summoned by Speaker's warrant to attend 



(a) 5 EUz, 0, 9, s, 12, 



|!24: EASTEE :EEBM, 7 GEO. W., 1826. 

a committee of the House of Assembly, has a right 
of action against the petitioning candidate, at whose 
instance he is summoned, for his expenses, such wit- 
ness being the returning officer whose conduct at the 
election is the subject of complaint, and whose return 
is set aside by such committee, and a new electioii 
ordered. 

From the facts in evidence on the Chief Justice's 
notes of the trial of this case, it appears to me that 
the case now before us is widely different from the 
broad question, as to the right of action an ordinary 
witness might have when so summoned at the in- 
stance of a petitioning candidate to set aside an elec- 
tipn. Upon that general question we are not now 
called upon for any opinion. In the present instance 
there can be no difficulty. The plaintiff is the very 
person whose conduct, as returning officer, is com- 
plained of by the defendant in his petition to the 
House of Assembly, who, on such complaint, are 
bound to order an investigation in the way the law 
directs, and the Speaker's warrant is the ordinary 
process to compel the attendance of the- returning 
officer, as well as of all other witnesses required for 
the full investigation of the complaint. The petition- 
ing candidate (defendant in this action) has estab- 
lished his ground of complaint against the officer (the 
present plaintiff) before the proper tribunal appoint- 
ed by law to try it; I therefore cannot see upon what 
principle the present plaintiff, under all these circum- 
stances, can have any right of action ; if indeed the 
petitioning candidate had failed in his complaint, and 
that the officer's return had been confirmed, the case 
might have been different. 

Per Curiam. — ^New trial without costs. 



raster tebm, 7 geo. iv., 1826. 3^6 

Payne v. MoLban. 

This ooui;t refused to set aside a verdict against the sheriff, io an actios fpr 
an escape, upon the ground that the coroner's jury who tried the cause 
was the satae witli that returned by the sheriff; that the filaintiff bad 
produced the original ca. ea. instead of a copy, or that the judgm^t 
against the party escaping had been obtained without consideration'. 

This was an action for an escape, tried at the assizes 
for the Midland District, and a verdict for the plaintiff. 

Robinson, Attorney-General, had obtained a rule 
nisi to set aside the verdict and enter a nonsuit, or 
grant a new trial upon the grounds — 

First.-^That the jury returned by the coroner was 
the same as that returned by the sheriff in his gen- 
eral pannel. 

Secondly. — That the plaintiff to prove the capias 
ad satisfaciendum upon which the party escaping had 
been arrested, had produced the writ itself and not 
an exemplified copy. 

Thirdly. — That the judgment which had been ob- 
tained against the party escaping was without con- 
sideration. 

Macaviay shewed cause. — After premising that it 
had formerly been the practice in this country, as it 
still is in England, to issue a writ of venire facias to 
the sheriff in each particular cause, but that a pro- 
vincial statute (a) now authorised the sheriff to return 
a general pannel for the assizes, but that where the 
sheriff was party to the suit, a venire went to the 
coroner. 

He contended, that, however the plaintiff might 
have objected to this jury, there could be no pretence 

(a) 36 Geo. III., c. 2, 



326 EASTER TERM, 7 GEO. IV., 1826. 

for the sheriff to overturn this verdict, because the 
persons composing the jury who gave it had been 
chosen or summoned by himself for other causes, for 
there was no authority to shew that a sheriff, being 
a defendant, might not summon the jury if the ad- 
verse party thought proper. 

He admitted that a good cause of challenge was a 
ground for a new trial; but as the sheriff had object- 
ed to the jury at the trial, and his objections had 
been overruled, this must be taken to be a good jury; 
that the principle upon which challenges were made 
was, that there existed reasonable grounds to suspect 
that the jury summoned were unfavourable to the 
party objecting to them, which it was absurd to sup- 
pose in this case. 

That it could be no objection that the same jury 
has been returned by a coroner as has been returned 
by a sheriff ; for he may even return one which has 
been returned by the sheriff and quashed. He cited 
the authorities below, {a) 

As to the second ground of objection, he observed, 
that it was not easy to conceive that the mere filing 
of a paper made it a record, or that the original 
should not be as good evidence as a copy. 

That the reason for using copies is, that the origi- 
nals cannot, after filing, be had, and, therefore, when 
that has been done, a copy must be received in evi- 
dence; but, until filed, the original is good, as laid 
down in Selwyn and other authorities, {b) 

(a)Impey'B Sheriff, 242; Tidd, 999, 610; 2 Com. Dig. 344; Co. Litt. 
156 ; SelloD, 460 ; 3 Bao. Abr. 732, 738, (i) Selwyn, N. P. 650 ; gnller'9 
hisiprius, 66 ; Cowper, 18, 65 ; Phillips, 380 ; 3 Campbell, 897, 



EASTER TERM, 7 GEO. IV., 1826. 327 

As to the third objection, he contended that a 
sheriff could not justify an escape on account of de- 
fects in the judgment, however competent it might be 
to the party against whom it had been obtained to 
set it aside on account of fraud or error. 

That if the writ justifies the arrest he is liable for 
the escape, unless he can shew that the judgment was 
altogether void, as having been obtained coram non 
judice, but that neither error in the judgment or pro- 
cess excuses the sheriff, (a) 

Robinson, Attorney-Greneral, contra, contended, 
that it was against reason to suppose that when a 
writ is specially directed to the coroner, requiring 
him to summon a jury in a case where the sheriff is 
a party, that he could legally summon the identical 
jury which has been summoned by the sheriff. 

That the sheriff had properly objected to this jury 
at the trial, as it was his interest that the cause 
should be tried by a jury who were competent to 
give a verdict that could not be set aside by the 
plaintiff. 

That the sheriff having made this objection at the 
assizes, and having been overruled, he was entitled 
to make it now; for what is a good ground of chal- 
lenge, is a sufficient reason for granting a new trial, 
as had been admitted on the other side. 

As to the second objection, that it is laid down itt 
Turner v. Eyles, ib) that although the writ be good 

(a) 1 Wilson, 255; Selwyn, 645; 3 Starkie, 1278; Croke, Eliz. 188; 
Lord Raymond, 775. (i) 3 B. & P. 456. 



328 EASTER TERM, 7 GEO. iV., 1826. 

for sotae purposes, yet, when an action is brought, the 
writ must be tiled and the record perfected. 

That although in the case of Wigley v. Jones, (a) 
the court considered the production of the writ itself 
as sufficient, yet that opinion of the court arose from 
the distinction which had been taken between mesne 
process and execution; and, therefore, that case did 
not apply in, or rather was favourable to the present, 
which was of a capias ad satisfaciendum. 

The facts of the case as given in evidence at nisi 
prius, the counsel contended, inferred fraud; the ac- 
tion upon which the person escaping had been 
arrested, having been founded upon an accommoda- 
tion acceptance,* or promissory note, which he had 
signed but had never paid. 

Macaulay, in reply, allowed that if any case could 
be found where a party had overturned a verdict 
where the jury were suspected of partiality to him- 
self, such a case would apply; but no such was ever 
supposed to exist. 

That no suspicion having been imputed either to 
the jury or the coroner, the verdict must be estab- 
lished. 

That the cases where an exemplified record has 
been required, are where a defendant in execution 
has been removed by writ of habeas corpus and com- 
mitted by a judge, and there the commitment being 
stated to be of record, must be shewn to be so. 

(a) 6 East, 601. 



EASTER IMM, 7 GEO. IV., 1826. 329 

That fraud or want of consideration can be np 
answer to this action, unless it could be shewn that 
there had been a conspiracy between the plaintiff 
and defendant in the original action to defraud the 
sheriff. 

That as to want of consideration for the judgmeiit, 
though it was by no means necessary to be shewn, 
yet that the plaintiff in this action, having been ac- 
tually arrested upon the note which he had signed at 
the request of the party escaping, he had given a 
sufficient consideration. 

Chief Justice. — As to the first ground of objec- 
tion taken to this verdict, I consider that it cannot 
be made by the plaintiff to a jury chosen, in fact, by 
himself. 

The coroner has some how or other, it does not 
appear how, summoned the same jury for the trial of 
this cause which the sheriff had summoned for the 
general business of the assize; but it is not alleged 
that this was done from any motives of collusion or 
partiality. The objection, too, I consider, if it had 
been founded in reasons arising from such improper 
motives, should have been made to the poll and not 
to the array. 

As to the second objection — admitting the ca. sa. 
itself to have been returned cepi corpus, as the cap- 
tion and subsequent escape are the gist of the action 
— I do not consider that the exception taken to the 
production of the original writ, instead of an exem- 
plified copy, is sufficient to affect the verdict. 

As to the objection on the ground of fraud or want 
42 



380 EASTER TERM, 7 GEO. IV., 1826. 

of. consideration for the original action, it appears 
that the plaintiff in the present suit gave an accom- 
modation note, acceptance, or endorsement to Whita- 
ker, who escaped. 

That he became liable to the payment of this docu- 
ment, and did actually suffer imprisonment in conse- 
quence of its non-payment; and, moreover, I consider 
that any objection made by the sheriff on the ground 
of fraud, should be a fraud affecting himself ; a collu- 
sion to confess a judgment, the escape from imprison- 
ment, and to saddle the sheriff with the debt, which 
are not alleged in this case. 

Sherwood, J. — As to the second grounti of objec- 
tion, the cases cited to shew that an exemplification 
of .the writ of execution, and not the original, should 
be produced do not apply. In the case cited of Turner 
V. Eyles, the defendant had been brought up by ha- 
beas corpus to be charged in execution, and being- 
thereupon committed by a judge of the court, it was 
insisted and allowed that the committitur should have 
appeared of record as an act of the court. 

That of Wigley v. Jones was one of mesne process 
— there the filing and entering the committitur were 
considered Unnecessary; but in neither of the cases 
was the question raised as to the propriety of giving 
the original capias ad satisfaciendum in evidence upon 
a trial for an escape. I consider that the original 
was properly received as evidence in this case, be- 
cause it was never returned into the clerk's office, 
and I concur with the Chief Justice upon the other 
points. 

Rule discharged. 



easter term, 7 geo. iv., 1826. 331 

Richardson v. Northrope. 

An arrest set aside, the affidavit to hold to bail not setting forth the depo- 
nent's name in words at length. 

Macaulay moved for and obtained a rule nisiio set 
aside the arrest and cancel the bail bond in this case 
on the following grounds : 

First. — That the affidavit was not entitled in any 
court or in any cause. 

Secondly. — That no proper venue was mentioned 
in the jurat; it being only stated to be sworn at Nia- 
gara, which might be in the state of New York. 

Thirdly. — That it did not state of what court the 
person who administered the affidavit was a commis- 
sioner. 

Fourthly. — That the deponent's name was not in- 
serted in words at length, but with the initial only of 
a second christian name, which omission he con- 
tended was fatal, as clearly to be deduced from the 
case of Reynolds v. Starkin; [a) observing, that in 
that case the christian name had been taken from the 
signature to the promissory note upon which the ac- 
tion was brought. 

Washburn shewed cause. — He contended that the 
affidavit was sufficiently entitled in a court by its 
being headed with the letters B. R.; that the amount 
of the sum sworn to shewed that it must have been 
in the King's Bench. 

That to title the cause was not only unnecessary 

(a) 4 B. & A. 639. 



332 EASTER TERM, 7 GEO. IV., 1820. 

but improper, no cause existing at the time of affida- 
vit made. 

That " sworn before me a commissioner, &c," was 
sufficient, if in fact the party were a commissioner.(a) 

That Niagara was a sufficient venue, that place 
being recognised as a division of this country by the 
statute providing for its police and other statutes. 

As to the last objection that it did not appear but 
that the deponent had been christened in the manner 
in which he has sworn, viz., John W. Eichardson, nor 
but that the "W. might be a mere fanciful addition to 
his name, or to distinguish him from other persons 
of the name of John Eichardson. 

He contended that the case of Hughes v. Sutton (b) 
where a wrong surname in the affidavit had been re- 
jected as surplusage, would either induce the court 
to reject the W. in this case, or to consider it as im- 
material. 

Macaulay, in reply, contended, that as this was 
not such an affidayit as an indictment for perjury 
could be framed upon it, must be insufficient. 

Campbell, C. J. — This is a rule to shew cause 
why the arrest should not be set aside for irregu- 
larity, and the bail bond given up to be cancelled, 
upon three grounds: first, that the affidavit is not 
entitled in any court; secondly, that it is not stated 
to be made before a commissioner of this court; aad 

(o) Kennett and Avon Canal v, Jones, 7 T. R. 451, (J) 3 M. & S. 178. 



EASTER iBRM, 7 GEO. IV., 1826. 33g 

thirdly, that the j)laintiff's christian name is not 
stated in full. 

As to the first ground it is now distinctly settled, 
that affidavits to hold to bail shall not be entitled of 
amy court, or with names of the parties j and in the 
case of E. King quitam v. Cole, (a) defendant was 
discharged upon common bail, because the affidavit 
was entitled. 

With respect to the second ground, the case of 
The Avon Canal Company v. Jones, {b) and that of 
The King v. Hare, seem to be completely at vari- 
ance. As to the necessity of stating the commissioner 
to be of this court, it being expressly required in the 
latter case, whereas in the former it is considered 
sufficient to state the affidavit to be sworn before A. 
B., commissioner, and provided he was in fact a com- 
missioner of the court, because it may be so alleged 
in an indictment for perjury; and I am inclined to 
favour that opinion notwithstanding the other is a 
later case. But it is not necessary at present to give 
any decision on that point, inasmuch as I think the 
rule must be made absolute on the fourth ground, 
viz., that the deponent's name is not inserted at full 
length. 

In the case of Weeks v. G-roneman, 2, Wilson and 
Cook V. Dobree, 1, Henry Blackstone, it is said, that 
great strictness is required with respect to the jurats 
of affidavits to hold to bail; the names of all the de- 
ponents must be written; nor can any affidavit be 
read that has any erasure or interlineation, or any 

(o) 6 T. B. 640. (J) 7 T. R. 13 East. 



334 EASTER TERM, 7 GEO. IV., 1826. 

clerical error in a part material, however trifling; 
and clearly a clerical error, such as in indebted in- 
stead of is indebted, because in all such cases perjury 
connot be assigned; uor will any explanatory or sup- 
plementary affidavit be admitted because the first 
was no affidavit at all, and the arrest upon it was 
unlawful. And the court cannot make that lawful 
which the law says is not; although the court will 
admit of explanatory affidavits for small defects in a 
part immaterial; but never where the first affidavit 
amounts to none at all, as not being sufficient to sup- 
port a charge of perjury; I am therefore of opinion, 
that this rule must be made absolute with costs, on 
the ground that the christian name of the plaintiflF is 
not stated in full. 

Kule absolute. 



[335] 
TRINITY TERM, 7 GEO. lY., 1826. 



Present : 

The Honourable Chief Justice Campbell. 
Mr. Justice Sherwood. 



Allan v. Brown. 



Where a cause has been referred by this court to arbitration, notice of the 
time of sitting of the arbitrators must be given to the attorney in the 
cause. 

Macaulay had obtained a rule nisi to set aside an 
award made under a rule of reference of this court, 
upon the ground that the notice or appointment to 
attend the arbitrators had been served upon the 
party himself and not upon his attorney. 

Robert Baldvoin, in shewing cause, contended, that 
a proceeding before arbitrators was a proceeding de- 
hors the suit, and that, therefore, notice to the party 
himself was sufficient, particularly as his attorney 
had left the district. 

Macaulay, contra, observed, that if the attorney 
had left the district, the appointment might have 
been left at his office. 

The court observed that the retainer to the attorn 
ney was not changed by the reference of the cause 
to arbitration. 

Per Curiam. — Rule absolute. 



336 TRINITY TEEM, 7 GEO. IV., 1826. 

Emert V. Miller. 

Semble, that where heavy damages are given in an action of covenant for 
good title, and it appears that the plaintiff knew the state of defendant's 
title, the court will grant a new trial, and that excessive damages may be 
considered as given contrary to evidence. 

This was an action for breach of covenant, tried 
before the late Chief Justice at the assizes for the 
Eastern District. 



The covenants upon which the breach was assigned 
were, that defendant was seised in fee, and had good 
right to convey. Breaches, that she was not seised in 
fee, and had not good, right to convey. 

The substance of the evidence given at the trial 
(exclusive of the proof of the deed) was, that the de- 
fendant being a tenant for life only, and the execu- 
trix of one Miller, deceased, had given a deed of bar- 
gain and sale to the plaintiff, containing the covenants 
upon which the breaches were assigned. 

Miller's estate was indebted to one Sheek, and 
Sheek was indebted to Emery, and the amount of ihe 
purchase money, £50, was to go in discharge of 
Sheek's debt to Emery; and Miller's estate would at 
the same time be discharged of its debt to Sheek. 

That at the time of the execution of the deed, both 
plaintiff and defendant being present, the plaintiff 
had expressed her doubts as tO the propriety of her 
giving a deed, but that Sheek, who was an attorney, 
had said she might do it. 

It appeared further, that the plaintiff had required 
and taken an indepmity from Sheek, and had after 



TRINITY TERM, 7 GEO. IV., 1826. 337 

his purchase built a house, and made some improve- 
ments upon the premises. 

The Chief Justice had charged the jury that under 
the circumstances he considered very low damages 
as proper. They found a verdict for the plaintiff 
with £125. 

Robinson, Attorney-Greneral, had obtained a rule 
nisi to set aside the verdict, as being against law and 
evidence. 

Macaulay shewed cause. — He insisted that there 
being no evidence of fraud or conspiracy on the part 
of the plaintiff, that there was no pretence for a new 
trial on that ground; that even if there had been any 
evidence of that tendency, the jury were the proper 
tribunal to determine that fact, which they had done 
by their verdict. 

That if defendant had intended to covenant against 
her own acts only, she should have done so, but that 
having covenanted generally, no evidence could be 
received upou the plea of non est factum, to vary or 
avoid the covenant, short of actual fraud or conspi- 
racy. 

Sherwood, J., observed, that such evidence might 
be given in case of a latent ambiguity. 

The counsel admitted that courts of equity were 
sometimes applied to, to restrain suits by expound- 
ing covenants in marriage settlements according to 
the intentions of parties, but that even those courts 
would not destroy covenants by parol testimony. 
43 



338 TRINITY TEBM, 7 GEO. IV., 1826. 

That the only way to avoid or restrain the effect 
of a covenant in a court of law, was by special plead- 
ing, unl€>ss in the case of fraud, duress or misreading. 

The counsel cited the case of Hesse v. Stevenson, 
(a) as going very fully into the doctrine of the con- 
struction of covenants, 'and as shewing clearly that 
matter dehors, the deed itself could not be taken into 
consideration to vary or alter its covenants, it hav- 
ing been determined in that case, that the inceptive 
words of a covenant being " that the grantor had 
good right to convey, &c.," were not restrained by 
the subsequent words, " and that he had not by any 
means, directly or indirectly, forfeited any right or 
authority he ever had over it," although from the 
nature of the transaction it might have been inferred, 
that he only meant to covenant for his own acts. He 
also cited the cases below, (b) 

The counsel further urged that to grant a new trial 
would be nugatory, as no evidence short of that which 
would avoid the deed altogether, could be given upon 
the plea of nofi est factum, and that the record could 
not be altered by inserting a new plea after verdict. 

Attorney-General, contra, observed, that as to the 
last position of the counsel on the other side, there 
were cases to shew that a plea might be altered after 
a new trial granted, but that there was no occasion 
for such a proceeding in this case, the plea of non est 
factum, being sufficient to admit the evidence required 
to destroy the plaintiff's action. 

(a) 3 B. & P. (6) 1 Chitty, 478 ; 1 East, 619 ; 4 M. & S. 339 ; Moore, 
158 ; Com. Pig. Pleader ; 11 East, 613 ; 2 B. & P. 26. 



TRINITY TERM, 7 GEO. IV., .1826. 339 

As to the transaction itself, it was evidently dis- 
honest and fraudulent. 

That the plaintiff had shewn that he was cognisant 
of the defect in the title, by taking Sheek's indemnity. 

That the evidence would have well warranted the 
judge, who tried the cause, in stating that the plain- 
tiff had no right to any damages, for it went clearly 
to shew that an ignorant woman had been persuaded 
to give a title which the plaintiff himself had con- 
sidered as bad, and that he had immediately turned 
round and got a large verdict against her, which was 
mere plundering. 

That it must not be inferred, because courts of 
equity are so often called upon, that courts of law 
have not equally the power of relieving against fraud, 
suppression of truth or false assumption, and that 
upon the plea of non est factum, for a defendant may 
well say in such cases, that the deed executed under 
such circumstances is not his— not his solemn act — 
not fairly obtained. 

The counsel cited the cases below (a) as analogous 
to the present, and as shewing that the circumstances 
of this case were sufficient to infer fraud, and that in 
cases of fraud there was no distinction between law 
and equity. 

He further contended, that the general covenant 
for good title, &c., upon which this action was brought, 
should be restrained by the subsequent covenant, for 

(ffl) 3 P. W. 315 ; 2 Atkyna, Thomson v. Evans, and Lord Kame's Princi- 
ples of Equity. 



340 TRINITY TERM, 7 GEO. IV., 1,826. 

quiet enjoyment in which the defendant only cove- 
nants, for the acts of herself and her heirs, and cited 
the case of Browning v. Wright, (a) where the gen- 
eral words, ' ' that defendant had good right to convey, 
&c.," were held to be restrained by the preceding 
warranty against himself and his heirs only, and that 
the. general construction of the instrument there in 
question required that the restrictive words, in other 
covenants, should be applied to those general words. 
He considered this case as analogous to the old one 
in the year books of the warranty of a horse, wherein 
it had been determined that no action could be brought 
upon the warranty, for defects which were as obvious 
to the buyer as to the seller, and that in this respect 
there was no distinction' between warranties under 
seal and others. 

That there was a difference between altering or 
varying the effect of a deed, and impugning the man- 
ner of obtaining it, or rendering it invalid on account 
of fi:aud. 

That in the present case there was no pretence for 
the plaintiff recovering damages, and that it was 
competent under the general issue to give evidence 
to invalidate a deed or covenant improperly and un- 
fairly obtained, and which ought not to stand. 

That the covenants in question should be construed 
as against the acts only of the defendant and her 
heirs. 

That this was at least a case for noininal damages 

(a) 2 B. & p. 23. 



TKINITY TEEM, 7 GEO. IV., 1826. 341 

only; it could merely be a loss without injury, and 
one in which the maxim of volenti non fit injuria 
strongly applied. 

MacatUay, in reply, contended, that unless Sheek 
and Emery could be found guilty upon an indictment 
for a conspiracy, the evidence was not sufficient to 
set aside the verdict. 

That the case entirely turning upon the weight of 
evidence, was not one for a new trial. 

That the covenant gave a clear right to damages, 
and that the plaintiff having built upon, and im- 
proved the land, had probably given the jury the 
grounds for ascertaining the quantum. 

That they would have been justified in finding to 
the amount of £500; but that it was unnecessary to 
enter into the consideration of the damages, as their 
excess did not enter into the defendant's motion. 

That the cases cited on the other side were in 
equity; that this being a court of law, would confine 
itself to legal decisions only; that to invalidate the 
deed altogether would be impossible, as being clearly 
good to give a life estate. 

The Chief Justice observed, that although exces- 
sive damages did not form a part of the defendant's 
motion, and therefore might not be considered as the 
immediate ground of granting a new trial, yet they 
might be considered as given contrary to evidence, 
and that the case might be better understood by 
another jury. 

Per Curiam. — Rule absolute for a new trial. 



342 trinity teem, 7 geo. iv., 1826. 

Grant bt al. v. Fanning. 

It is necessary in a declaration in trespass for mesne profits to state that 
the land was the land of plaintiffs, such omission is not cured by stating 
his expulsion. 

Trespass for mesne profits. 

Declaration stated, that defendant, on the 3rd day 
of April, 1824, with force and arms, &c., broke and 
entered the township of Wolfe Island, with the rights, 
members and appurtenances thereto belonging, situ- 
ate, lying and being in the Midland District afore- 
said, and ejected, expelled, put out, and removed 
said plaintiffs from their possession and occupation 
thereof, and kept, and continued them expelled and 
removed for a long space of time, to wit, from the day 
and year, &c., until the 18th day of June, 1825, and 
during that time took and had, and received to the 
use of him, the said defendant, all the issues and 
profits of the said township, with the appurtenances 
of great value, to wit, of the yearly value of £50, 
whereby the said plaintiffs, during all the time afore- 
said, not only lost the issues and profits of the said 
township, with the appurtenances, but were deprived 
of the use and means of cultivating the same, and 
were forced and obliged to, and did necessarily lay 
out and expend divers large sums of money, amount- 
ing in the whole to a large sum, to wit, £25, in and 
about recovering of the possession of the said town- 
ship, with the appurtenances, to wit, at Kingston, in 
the Midland District aforesaid, and the said defen- 
dant, during the said time, felled, cut down, pros- 
trated, and destroyed the trees and pollards, to wit, 
500 oak trees, &c., of said plaintiffs, of great value, 
to wit, of the value of £50, there growing and being 
in and upon said township, and took and carried 



TRINITY TEEM, 7 GEO. IV., 1826. 343 

away the same, and converted and disposed thereof 
to his own use — et alia enormia — to plaintiffs' damage 
of £100. 

Demurrer, assigning for causes : 

First. — That the premises which the said defen- 
dant is in the said declaration alleged to have broken 
and entered, are not in the said declaration alleged 
or described to be the close or property of the plain- 
tiffs. 

Secondly. — That the said premises are in the said 
declaration only mentioned generally as the township 
of Wolfe Island, with the rights, members and appur- 
tenances thereto belonging, but no lot, close, tract or 
parcel of land in said township, is described or re- 
ferred to as the place alleged to be broken and en- 
tered, by the said defendant, and such an allegation 
of a trespass on land committed somewhere in a 
whole township, is not sufficiently definite to enable 
or require the defendant to answer the charge. 

Thirdly. — That the felling, &c., the trees and pol- 
lards of plaintiffs, growing and being, in and upon 
said township, above supposed in the declaration to 
have been doiie by defendant during the time of the 
said trespass, are laid only as incidental to and aggra- 
vating circumstances of the said main trespass, and 
as that is insufficient, and fails, must fail with it. 

Fourthly. — That the said supposed felling, &c., the 
said trees and pollards, if laid, not as consequential, 
but as independent trespasses, are not in the said 



344 TRINITY TEEM, 7 GEO. IV., 1826. 

declaration alleged to have been committed with force 
and arms, or against the peace, and, therefore, are 
not sufficient in law to require him to answer thereto. 

Fifthly. — That the said supposed breaking and en- 
tering are not in the said declaration alleged to have 
been committed by said defendant against the peace. 

Sixthly. — That said declaration is in other respects 
informal and insufficient. 

Joinder. 

Macaulay, in support of the demurrer, ai^ed : 

That the plaintiff could not take any advantage of 
the observation of Chitty, " that the deelaration for 
mesne profits should describe the premises in the 
same manner in which they were described in the 
declaration in ejectment," for that he can only be in- 
tended to mean that they are to be so described, if 
their description in the original declaration was cor- 
rect. 

That the want of the statement in the declaration, 
that the premises trespassed upon were the close or 
property of plaintiff, is fatal, and is not cured by the 
subsequent charge of expelling the plaintiffs from 
their possession and occupation, for such expulsion 
is a collateral injury and not the principal trespass, 
which must itself be correctly stated and proved. 

That the action for mesne profits is emphatically 
an action of trespass, and subject to its rules; that the 
title might even come in question where the judgment 
in ejectment was upon a default. 



TRINITY TERM, 7 GEO. IV., 1826. 345 

The counsel cited the authorities below, in support 
of the above positions, (a) 

As to the second objection, that a township, although 
an organized part of the country, as a civil division, 
was not one in which a trespass could be alleged 
without further description, and that, therefore, the 
locus in quo was not sufficiently described, and was 
good cause of demurrer, (b) 

That the charge in the declaration of cutting down 
the plaintiff's trees, was laid as mere matter of aggra- 
vation, and could not cure the defective statement of 
the principal trespass, which failing, that must fail 
also. 

Robinson, Attorney-G-eneral, contra, admitted the 
declaration not to be according to the usual forms, as 
not stating the property trespassed upon to be the 
property of plaintiffs, but contended that the certainty 
required in pleading might be inferred from the sub- 
sequent parts of the declaration, and that the subse- 
quent statement of the plaintiffs' expulsion from their 
possession, was sufficient for that purpose, which" was 
also strengthened by the allegation of the taking 
away and converting the trees of plaintiffs. 

That the defendant's counsel had affected to con- 
sider a township as an insufficient description of the 
locus in quo, but he contended it to be as sufficient as 
lot, or any other general term; that the number of 
acres need not be mentioned, as no possession was 
required, he cited the authorities below, (c) 

(a) 3 T. R. 292; 2 T. R. 165; 1 Ch'itty, 607; 2 Camp. 175; Com. Dig. 
Pleader, Salkeld, 640; 3 T. R. 592. (5) Adams, 240. (c) Raymond, 288 ; 
13 East, 407 ; 3 Com. Dig. 

44 



346 TRINITY TEEM, 7 GEO. IV., 1826. 

Macaulay, in reply, contended, that the number 
of acres should, in this action, be stated with the same 
certainty as in the declaration in ejectment, to the 
intent that the quantity of the land may appear; {a) 
and observed, that the case in East was a case after 
verdict, and that in Lord Eaymond against the 
plaintiff. 

The coyrt were of opinion in favour of the de- 
murrer, but gave the plaintiff leave to amend. 



Brown v. Hudson. 

A foreign law, authorising the discharge of an insolvent debtor, must be 
directly proved, and the court will not listen to an application for the dis- 
charge of such person after he has allowed judgment to go by default and 
is in execution. 

The defendant had been held to bail in the year 
1823, and had several terms back made an unsuc- 
cessful application similar to the present, which had 
been refused on the ground of the insufficiency of the 
documents produced — he had let judgment go by 
default, and was now in execution. 

Washburn had, in a former part of the term, ob- 
tained a rule nisi to discharge him from the custody 
of the sheriff of the District of Niagara, upon filing 
common bail, he having been discharged from im- 
prisonment for the debt for which he was in execu- 
tion by the insolvent laws of the state of New York, 
The counsel, in support of the present application, 
produced the following documents : 

Defendant's affidavit of the facts. 

(a) Adams. 



TRINITY TERM, 7 GEO. IV., 1826. 347 

His discharge, under the hand and seal of Na- 
thaniel Howell, Esquire, judge of Ontario county, in 
the state of New York, dated the 3rd day of July, 
1821. 

The certificate of the Secretary of State ol New 
York, that Mr. Howell was first judge of Ontario 
county, and that he was authorised to grant dis- 
charges by virtue of an act of insolvency of the leg- 
islature, passed April 7th, 1819. 

The certificate by the governor, under the great 
seal of the state of New York, that Mr. Yates, who 
certified Mr. Howell's authority, was Secretary of the 
State. 

Robert Baldioin shewed cause, he contended, first, 
that this application being in the nature of one to 
discharge proceedings for irregularity, was clearly 
too late, as tending to involve a plaintiff in all the 
costs of prosecuting a suit to judgment and execution; 
whereas if the application had been made upon the 
arrest, and it had appeared that the defendant was 
entitled to his discharge, the plaintiff might have dis- 
continued the action. 

Secondly.^ — That a defendant could only avail him- 
self of a discharge under a foreign statute of insol- 
vency by plea, which would put it in the plg,intiffs' 
power to reply fraud or a subsequent promise, which 
he could not be prepared to do upon the return of a 
four-day rule. 

Thirdly.- -That the insolvent law of the foreign 
state, as well as that the defendant was fairly the 



348 TRINITY TEEM, 7 GEO. IV., 1826. 

object of it, should be proved to the court, which had 
not been done in the present case. 

Washburn, contra, considered that although the 
application had been delayed from the difficulty in 
obtaining the proper documents, that it was not too 
late, and he contended that the proper mode for the 
defendant to take advantage of his foreign discharge 
was by motion, for that the plaintiff might be entitled 
to proceed to judgment although he could not arrest 
the person of his debtor. 

The Chief Justice considered that the application 
came too late, and that had it been made in time the 
foreign law should have been proved. 

Per Curiam. — Application refused. 



AjStdruss v. Page. 

A writ of fieri facias may be amended so as to have relation to the day of 
the entry of the judgment. 

Macaulay moved to amend the writ oifierijacias, 
issued against the lands and tenements of the defen- 
dant, by making it relate to the day of the entry of 
the judgment. 

Application granted. 



Holme v. Allan and Gray. 

One partner cannot sign a cognovit in the name of a firm without a special 
authority, and a judgment entered upon such will be set aside with 
costs. 

Macaulay had obtained a rule nisi to set aside a 
judgment and execution, entered up and issued upon 



TRINITY TERM, 7 GEO. IV., 1826. 349 

a cognovit actionem which had been given by the 
defendant Allan, in the name of the firm, without his 
having received any special authority for thai pur- 
pose — the instrument was signed " Allan & Co." 

Robert Baldvdn, for the plaintiff, admitted the judg- 
ment to be irregular, but pressed the court to lay 
the defendants under terms of bringing no action 
against the plaintiff, observing, that if the defendant 
Allan had given the cognovit in his own name only, 
the partnership goods would have been equally liable 
to be seized under 2k fieri facias, and that, therefore, 
the defendant G-ray had, in fact, sustained no injury. 

He further contended, that no mention having been 
made of costs in the rule -m'si, that it should, if made 
absolute, be without costs. 

Robinson, Attorney-G-eneral, and Macaulay, in 
reply, observed, that in a case of a mere slip or in- 
advertency, the courts in setting aside a proceeding 
would sometimes restrain a defendant from bringing 
an action; but that it x^as otherwise in cases of gross 
irregularity like the present, where the court, in fact, 
had no discretion. That there was no doubt as to 
the defendant's right to costs, where the proceedings 
were so grossly irregular as the present went. 

The Chief Justice observed, that he considered 
the costs upon motions as always in the discretion 
of the court. 

Per Curiam. — Rule absolute with costs. 



350 TRINITY TERM, 7 GEO. IV., 1826. 

* Doe DEM. DuNLOP v. Rob. 

Where it was sworn that the declaration in ejectment was served upon the 
tenant in possession, the court refused to set it aside upon an affidavit 
stating it to have been served upon a servant or stranger upon the 
premises. ^ 

Robert Baldwin moved to set aside the declaration 
in ejectment in this cause, upon an affidavit stating, 
that it had only been served upon a servant or some 
stranger upon the premises, and that there had been 
no subsequent acknowledgment of its receipt by the 
tenant in possession. 

The Chief Justice observed, that the sheriff had 
sworn positively to a service upon the tenant in pos- 
session. 

Per Curiam. — Application refused. 



McKoANB V. FOTHERGILL, BSQ. 

{Having privilege of parliament. ) 

The court gave leave to issue an original summons to warrant the testatum 
issued against a member, after motion to set the proceedings aside for 
irregularity. 

Washburn had obtained a rule to shew cause why 
the writ of summons issued in this cause to the sheriff 
of the District of Newcastle, should not be set aside 
for irregularity with costs, the venue in the bill filed 
being in the Home District, and the writ, to the 
sheriff of Newcastle, being an original instead of a 
testatum, and no original having actually issued in 
the first instance to the Home District. 

Robert Baldwin now produced in court a roll with 
the original bill, a summons to the sheriff of the 
Home District returnable on the last of Easter Term 



TRINITY TERM, 7 GEO. IV., 1826. 351 

last, with a return thereto, and the award of a testa- 
tum, to the sheriff of Newcastle, returnable on the 
first of this term regularly entered on it, and also 
produced an original summons with the sheriff's re- 
turn thereto taken out since the obtaining the above 
rule, but tested on the first and returnable on the 
last of Easter Term, and moved to amend the writ to 
the sheriff of Newcastle by inserting the testatum 
clause in it. 

WasMur7i opposed the application, and insisted 
that the amendment ought to have been made before 
he had moved to set aside the writ for irregularity, 
but that at all events the amendment could only be 
granted upon payment of costs. 

Baldivin, in reply, stated, that as to his being in 
full time with his application there could not be a 
doubt, and that the question as to costs was quite as 
clearly in his favour. He cited the cases below, (a) 

The court said that the case in 6 T. R. was suffi- 
ciently satisfactory, and gave leave to amend with- 
out costs. 

The rule for setting aside the writ for irregularity 
obtained by Washburn, was subsequently discharged, 
the grounds of it failing. 

Per Curiam. — Application granted. 

(o) 2 Archbold, 95 ; 4 East, 192 ; Tidd, 117, 1037 ; 3 T. K. 388 ; Salk, 
589; Tidd, 145, 6; 5 T. R. 577 ; 6 T. R. 440, 1. 



[352] 
MICHAELMAS TERM, 7 GEO. IV., 1826. 



Present : 

The Honourable Chief Justice Campbell. 
Mr. Justice Sherwood. 



Doe ex. dem. Sheldon v. Armstrong. 

A power of attorney and contract of sale passed before a notary in Lower 
Canada (an instrument not under seal) is not sufficient to authorise a 
conveyance of lands in this province. 

This cause was tried at the assizes for the Eastern 
District, and a verdict for the defendant. 



The plaintiff's lessor claimed the premises in ques- 
tion, under a grant from the Crown. 

The defendant claimed title under a deed executed 
in this province by virtue of a power of attorney and 
contract of sale, not under the seal of the party, but 
acknowledged before a notary in Lower Canada, 
agreeable to the forms used in that province, which 
instrument was followed by a deed regularly exe- 
cuted here in pursuance of the power. 

The defendant also relied upon the want of notice 
to quit, or demand of possession. 

Macaulay shewed cause, hecontended, thatalthough 
it might be necessary that a deed conveying land 
should be under seal, yet that it did not follow that 
an authority to execute such deed must also be under 



JIIC^AIILMAS TPRM, 7 GEO. IV., 1826. 353 

seal, for that the Statute of Frauds did not prevent 
a person from giving an authority by parol to exe- 
cute a deed uuder seal. 

That the instrument executed in Ijower Canada 
being in itself a sale, and possession having followed 
under it, was sufficient to pass the land by way of 
feoffment, for that a feoffment might be withoujt seal, 
and the deed of sale delivered .before the notary was 
a sufficient delivery of a symbol; and that those deeds 
only required seals which take effect under the 
statute. 

That the power having been executed in Lower 
Canada, agreeable to the laws of that country, made 
it a valid authority here, in the same manner that an 
(L.S.) has been considered as a binding and valid 
seal, when proved to be the usage of a foreign colony. 

As to the point of notice, he contended that it was 
necessary before action brpught, the defendant hav- 
ing been in possession under a contract. 

Robinson, Attorney-G-eneral, contra, observed, 
that the positions attempted to be established by the 
defendant's counsel, were such as would, if it were 
possible to admit them, destroy all the settled and 
acknowledged practice of conveyances under the 
English law. 

That the plaintiff in this case sought to recover 
under a deed which was clearly void, as having been 
executed under a void authority. 

That as to transfers of laud being valid without 
45 



354 MICHAELMAS TERM, 7 GEO. IV., 1826. 

writing, it had been long settled that none could be 
so except leases for a less time than three years, the 
provision for which, in the Statute of Frauds, shews 
that no others can be valid without, and has no refer- 
ence to the present question, viz., of the valid execu- 
tion of a deed requiring a seal. 

That it is so clearly established that a power to 
execute a deed requiring a seal must itself be sealed, 
that it was never attempted to be questioned, {a) 

Chief Justice. — This was an action of ejectment 
in which a verdict was taken for defendant subject 
to the opinion of this court on points reserved; on 
which we are of opinion, that the tenant being in 
lawful possession under a contract for the purchase 
of the premises he was entitled to six months' notice, 
or at all events to a notice to quit and demand of 
possession anterior to the demise laid in the declara- 
tion, as determined in the case of Lewis v. Beard, 13 
East, and Birch v. "Wright, 1 T. R. We are also of 
opinion, on the only other material point, that a 
power of attorney, without seal, (although made in a 
foreign jurisdiction where seals are not used to such 
instruments,) is not sufficient to authorise a deed 
under seal, for the conveyance of land in this pro- 
vince; but, instead of a verdict for defendant, we 
think this should have been a nonsuit. 

Sherwood, J. — The letter of attorney, under which 
the conveyance of the premises mentioned in the 
declaration in this cause was effected, and by which 
the plaintiff claims, is not an instrument under seal, 

(1) 1 Coke, 52. 



« 



MICHAELMAS TEKM, 7 GEO. IV., 1826. 355 

and therefore by the laws of England invalid for the 
purpose of transferring real property. The letter of 
attorney appears, upon the face of it, to have been 
executed in Lower Canada, and the plaintiff alleges 
it is a good and operative instrument to authorise 
the conveying of lands by the laws of the colony 
where it was made, and under such circumstances 
ought to be equally efficacious in this province. I ■ 
have always understood the principle of the lex loci 
to relate to such transactions only, respecting which 
transitory suits are instituted, but not to any thing 
which must necessarily form the whole or any part 
of the grounds of a local action. 

The deeds under which the plaintiff claims relate 
wholly to lands in Upper Canada, the titles to Which 
are governed by the laws of England alone, and ac- 
cording to these laws the power of attorney in ques- 
tion is decidedly bad. 

To allow the lex loci to prevail in transitory actions 
of foreign origin, and particularly in commercial con- 
cerns, tends {o the advancement of justice, but the 
same principle extended indiscriminately to local ac- 
tions, would soon havfe the effect to change our whole 
system of common assurances to lands in this pro- 
vince, and to substitute, in many instances, the laws 
of a foreign country, for the determination of impor- 
tant rights, however incongruous to our own institu- 
tions. I 

It appears to me that the deed to the plaintiff's 
lessor is illegal, and consequently void. 

Supposing then the defendant to have no title in 



356 MICHAELMAS TEEM, 7 GEO. IV., 1826. 

fee to the premises, the next question is, whether it 
was incumbent on the lessor of the plaintiff to demathd 
possession anterior to the day of the demise laid in 
'the declaration. I think the defendant was tenant at 
will, and as such was entitled to a demand of posses- 
sion before the day of the demise, conformably to the 
authority in the case of "Wright ex dent: Lewis and 
others v. Beard. 

Discharged rule. 



OeSEE v. McMlCHiEL ET AL. 

Where it is intended in trespass to justify, that the locus in quo was a high- 
way, the averment must be direct, not left to inference ; and a justifica- 
tion in a second plea, for entering such of the closes as are not included 
in the limits of the highway alluded to in the first will also be insufficient ; 
and a plea proposing to justify the cutting down trees on the aJJAcent 
land to repair the highway, niust mention the number and description of 
the trees cut down. 

To an action of trespass for breaking and entering 
the plaintiff's close aiid cutting down and converting 
his trees, the defendant pleaded. 

First. — The general issue, not guilty. 

Secondly. — That as to so much of the "said sup- 
posed closes of plaintiff in the several counts of the 
declaration mentioned, as is included and contained 
within the limits of a tract of ground called a road, 
leading from a place known by the name of Abbott's 
Inn, in a straight direction to a certain other place 
known by the name of John Knapp's, being in front 
of the dwelling-house of the late John Knapp, and as 
to the breaking, &c., the said tract of ground called 
a road, and the felling, &c., the trees growing there- 
on, actio non, because at the time of the said stij)- 



MICHAELMAS TERM, 7 GEd. It., 1826. 3'57 

posed trespasses the said tract of ground, called a 
road, was a commoii siiid public hi^ttwaly duly estab- 
lishfed according to law, and was ordered and directed 
by the justices, &c., to be opeiied, &c., and pursuant 
to the order of the said justices, and tinder th6 difec- 
tion of the overseers of the said highway, the defen- 
dant, with others liable to perform statute labour, 
entered, &c;, and felled, &c., the tre^s growing and 
being thereon for the cause assigned, &c. 

Thirdly. — "As to the rDsidufe of the supposed 
closes of plaintiff not included and contained within 
the limits of the public high my in second plea men- 
tioned, and as to the breaking, &c., arid felling, &c., 
the trees and pollards growing thereon, actio non, 
because at the time of the said supposed trespasses 
there was a causeway and bridge required tO be built 
and repaired upon the said highway, and the said 
residue of the said closes was then and there unin- 
ciosed and unimproved land, and the said trees, &c., 
were most corivenient and best adapted to building 
and repairing suish causeway and bridge, whereupon 
Isaac Knight, the overseer, &c., directed defendaiits, 
being the labourers, &c., to cilt and make use of Said 
trees for such purpose, whereupon they entered, &c., 
doing no unnecessary damage, &c. 

Fourthly. — "Actio non, because after the said sup- 
posed trespasses were committed, arid after plaintiff 
had demanded of defendant that he should settle 
with 'plaintiff for the damage done to him thereby, 
and before, &c., to wit, &c., defendants and plaintiff 
mutually settled all demands betwisen them to that 
date, and in the said settlemeiit defendaiits then and 



358 MICHAELMAS TERM, 7 GEO. IV., 1826. 

there paid to plaintiff a sum of the lawful money of 
Upper Canada, in full satisfaction of all demands on 
the part of plaintiff against defendants to that date, 
and thereupon defendants and plaintiff executed and 
delivered to each other mutual receipts." 

The plaintiff joined issue upon the first plea, and 
demurred to the' other three, assigning for' causes: 

To the second. — " That it is not alleged or averred 
in the said second plea, that the closes in the decla- 
ration mentioned were, or that any part of them were 
a public highway or road, nor hath defendant, in his 
said plea, set forth the supposed order of the court 
of quarter sessions in, his said -plea mentioned, nor 
the date thereof, nor averred that the supposed order 
at the time of committing the trespass, &c., was, or 
remained of record in said court, &c. 

To the third. — "That it is not alleged or averred 
in the same, that the closes in the declaration men- 
tioned, or any part of them, were a public highway, 
or hath it set forth or averred the number of trees, 
or the description thereof, cut to repair the supposed 
bridge, &c." 

To the fourth, that it does not set forth the amount 
of the sum paid to plaintiff, on the supposed settle- 
ment of all demands, &c., and that it does not set 
forth that the supposed sum paid to plaintiff was in 
satisfaction of the trespasses, &c. Joinders. 

Robinson, Attorney-G-eneral, in support of the de- 
murrer, observed, that although the defendants might. 



mCHAELMAS TERM, 7 GEO. IV., 1826. 359 

perhaps, under the provincial statute, have pleaded 
the general issue alone, and given the facts of justifi- 
cation in evidence, yet that having pleaded specially, 
he must be confined to the regular forms of pleading. 

That there was no sufficient averment in the pleas 
that the locus in quo was a highway; that such facts 
should have been averred directly and positively, and 
not left to inference; that the date of the order of 
sessions should have been set out, as well as the 
quantity of the trespass justified in the third plea, by 
setting out the number of trees cut down; that the 
third plea justified the trespass on the plaintiff's close, 
by setting out a trespass on the highway; that the 
fourth plea is defective in not averring the amount of 
the sum paid, and that it was accepted in satisfaction 
of the trespasses. 

Macaulay, contra, contended, that the averment 
that the locus in quo was a highway was sufficient, 
as it must necessarily be inferred that it was part of 
lot number eighteen. 

That the two pleas taken together formed a full 
answer to the declaration. The second justified the 
supposed trespass in the highway, and the third the 
remainder of the trespass. That the date of the order 
of sessions was not substance, and that the whole 
statement respecting it might be in fact struck out; 
that the statement of the trees cut down being only 
matter of aggravation, a justification of the principal 
trespass was sufficient, and that the number of trees 
being set out in the declaration rendered it unneces- 
sary to enumerate them in the plea. 



360 MICHAELMAS TEEM, 7 GEO. IV-, 1.826. 

That tljiough no sum was mentioned in the fourth 
P|lea, yet a sum being stated to be paid in sajtisfaction 
was sufficient. 

Sherwood, J., delivering the opinion of the court, 
observed, there is no averment in the second plea in 
this cause, that any part of the premises meiitioned 
i^ the declaration is a highway. I therefore think 
fhe plea void for uncertainty. 

The third plea proposes to justify the entry of the 
defendant on the residue of the closes, not within the 
limits of the highway alluded to in the second plea. 
As no part of the premises mentioned in the declara- 
tion is stated to be a highway in the second plea, it 
is impossible by the third plea to determine on what 
part of the premises the defendant intends t;o justify 
an entry. It is quite evident he does not mean to 
justify an entry on the whole premises, but he does 
not, with sufficient certainty, set out the portion he 
intends to exclude. 

If the demurrer to the third plea were general, the 
court might make an intendment in its favour, but an 
intendment cannot supply the want of certainty in a 
plea, when the objection is alleged as a cause for 
special demurrer. 

Per Curiam. — Judgment for plaintiff. 



michaelmas tebm, 7 geo; iv., 1826. 361 

Malcolm v. Rapblje, Shekipp op the London 

DiSTEICT. 

Iq an action ou the case against a sheriff for not giving notice of the sale of 
effects taken in execution at the most public place in the township, held 
not necessary to set out the name of such place. A statement that defen- 
dant sold the goods without legal notice, and that he sold them for le^s 
than their real yalue, not considered as distinct and independent grounds 
of action. 

This was an action on the case against the defen- 
dant, for selling the plaintiff's goods taken under an 
execution, without giving the notice required by the 
provincial statute. 

The declaration, set out Sh&fi.ja., and its delivery 
to the defendant in the usual form, and then stated 
that defendaftt, of his own wrong, sold the said goods 
and chattels without giving public notice in writing 
of the sale thereof, or of the time and place whep and 
where the same were to be exposed to sale, at the 
nipst public place in the township where the said 
goods and chattels were seized and taken in execu- 
tion, to wit, at the township of Oakland, eight days 
previous to such sale, but wholly neglected and re- 
fused so to do, contrary to the statute in that behalf, 
and also then and there, wrongfully and injuriously, 
sold and disposed of the said goods and chattels for 
much less sum of money, to wit, the sum of two hun- 
(Jred pounds less than the same were really worth, 
&c. 

The second count, similar to the first, but stating 
the unlawful sale to have been made by the deputy. 

To this declaration the defendant demurred speci- 
ally, assigning for causes, first, that it does not aver 
any place certain as the most public place in the said 
township of Oakland; and then deny that the notice 
46 



362 MICHAELMAS TEKM, 7 GEO. IV., 1826. 

was given at that place. Secondly, for uncertainty, 
as not shewing whether plaintiff therein complains 
that defendant did not give eight days' previous no- 
tice, at the most public place in the said township of 
Oakland, of the sale of the said goods and chattels, 
or that defendant sold the said goods, &c., at a place 
not the most public in the said township of Oakland, 
or that plaintiff complains of both, and that no issue 
can be taken on the same. Thirdly, for duplicity in 
joining two distinct matters and causes of action, and 
attempting to put two distinct causes of action in 
issue, to wit, whether defendant sold the goods, &c., 
without giving public notice of the sale thereof, or of 
the time and place when and where the same were 
to be exposed to sale at the most public place in the 
township of Oakland, eight days previous to such sale 
or not, and also whether defendant sold said goods 
and chattels for a much less sum of money than the 
same were really worth, and for which he ought to 
have sold them. Joinder. 

BaUmn, in support of the demurrer, observed, 
that the plaintiff should have pointed out some place 
as the most public, where the defendant should have 
advertised the goods for sale, in order to give him an 
opportunity of shewing that they were advertised 
there, or of pleading that some other place was more 
public, and that he had advertised them there. 

That it was no answer to this objection to say, that 
the statute had not named the place, which could not 
be, as that which was the most public place at the 
making of the statute might shortly cease to be so. 

That at any rate some place should be named. 



MICHAELMAS TERM, 7 GEO. IV., 1826. 363 

although it might not in point of fact be the most 
public, for that in pleading a place must be mentioned 
where every material fact took place. 

That the charge throughout this declaration is in 
the disjunctive, contrary to the general rules of 
pleading. 

Macmday, contra, observed, that this being an ac- 
tion upon the case, the defendant, by pleading the, 
general issue, would have thrown upon the plaintiff 
the onus of proving the defendant's non-compliance 
with the statute, which might have been answered by 
contrary evidence, but that it could not be incumbent 
upon the plaintiff to assign a place to a negative. 

That where a circumstance must be reasonably 
considered as more in the knowledge of the defen- 
dant than in that of the plaintiff, the defendant must 
plead it, or rely upon the general issue. 

That as to the objection to two causes of action 
being included in the same count, it was the same in 
trover, where several articles were mentioned, or in 
the action against a sheriff for an escape and false 
return, in either of which cases there might be a 
separate action. 

He observed further, that in the present case, the 
selling the goods at an under value was rather con- 
sequential, and matter of aggravation, than a princi- 
pal cause of action. 

Sherwood, J., delivering the opinion of the court. 
—The plaintiff states, in the first count of the decla- 



364 MICHAELMAS TERM, 7 GEO. IV., 1826. 

ration, that the defendant, as sheriff of the District of 
London, seized his goods and chatties by virtue of a 
writ of J/?. /«., and caused them to be sold, without 
giving any notice of such sale at the most public 
place in the township where the effects were taken 
in execution. 

The defendant has demurred to this count, and 
assigned for special cause, among others, the want of 
a specification in the declaration of the plaintiff of 
the most public place in the township. 

In the course of the argument on the demurrer and 
in support of it, the defendant alleged the impossi- 
bility of traversing so indefinite an averment as the 
plaintiff has made respecting the want of notice of 
sale; if there were any necessity of a traverse, to this 
part of the declaration, the objection would have a 
great deal of weight, but as the plea of not guilty in 
case puts the plaintiff u-pOn proof of the whole charge, 
it is competent for the defendant to adduce evidence 
of one place being more public than another, and 
then the jury would determine the question. Actions 
of trespass, and actions on the case, are essentially 
different; the former is an action stricti juris, but the 
latter is founded in the justice and conscience of the 
plaintiff's case, and in its nature and effect is similar 
to a bill in equity, therefore the defendant, by plead- 
ing the general issue in this action, would secure to 
himself all the advantages which the law allows under 
any mode of pleading. 

I also think the fact of the most public place is a 
matter lying more in the knowledge of the defendant 



MICHAELMAS TERM, 7 GEO. IV., 1826. 365 

than of the plaintiff, and the defendant, as sheriff, was 
bound to ascertain, and to put up such a number of 
notices as would remove all doubts upon the subject. 

Another cause of demurrer assigned by the defen- 
dant is, that the declaration , is objectionable from 
duplicity. He also states that the plaintiff has set 
out two facts, either of which, independently of the 
other, does of itself establish a sufficient ground of 
action, that is to say, that the defendant sold the 
goods without giving legal notice, and that he sold 
them for less than their real value. 

It appears to me that the latter allegation was not 
intended by the plaintiff as a substantive and inde- 
pendent cause of action, and in fact is not such, even 
if he did intend it. It clearly has no other effect in 
this declaration than to aggravate the legal cause of 
complaint, the selling of the plaintiff's goods without 
giving notice of sale. 

There was nothing more probable than the fact of 
the goods selling for less than their value, when no 
steps were taken by the sheriff to insiire the attend- 
ance of purchasers, and therefore it seems to me 
almost a natural consequence of such dereliction of 
duty. This averment in truth answers as nearly as 
possible to the per quod, in an action of trespass, 
and in this particular case, seems to exhibit the pro- 
bable injury arising from the want of notice in a more 
extended view. 

I am of opinion, therefore, that the plaintiff should 
have judgment on the demurrer. 

Per Cmiam. — Judgment for plaintiff. 



366 MICHAELMAS TEEM, 7 GEO. IV., 1826. 

BiDWBLL, Administrator op Washburn, v. Stanton. 

Where the payee of a note endorsed the same to A. upon an usurions con- 
sideration, and A. afterwards failed in an action against the drawer upon 
the ground of usury, such payee may nevertheless recover against the 
drawer ; and it seems that the ground of the failure in the former action 
may be proved by any person present at the trial, and it is not necessary 
to prove a re-endorsement by the usurer to the payee. 

This was a case tried at the assizes for the Mid- 
land District. 



The action was brought upon a promissory note 
drawn by the defendant, and payable to the plain- 
tiff's intestate, who afterwards endorsed to one Whit- 
ney upon an usurious contract. Whitney brought 
his action against the present defendant but failed. 

The record of the judgment in that suit was proved 
or admitted in the present action, which shewed that 
an action had been brought against the present de- 
fendant, and that there had been a judgment in his 
favour, but as the plea of usury did not appear upon 
the record, it did not shew the grounds of the judg- 
ment. 

The plaintiff in this suit offered the evidence of 
the person who had been the defendant's counsel 
upon the former trial, to prove that the verdict passed 
in his favour upon the ground of usury in Whitney. 
This testimony was rejected upon the ground of the 
witness having been the defendant's counsel in the 
matter before the court. 

Another witness was offered to prove what one 
Short had proved at the former trial, namely, that 
the defence set up was usury. 

This testimony was also rejected upon the ground 



MICHAELMAS TERM, 7 GEO. IV., 1826. 367 

that it was not the best evidence, Short being still 
living. 

Upon this state of the evidence, and also upon the 
ground that the note should have been re-endorsed 
by Whitney, the judge at nisi prius nonsuited the 
plaintiff. 

Macaulay, having obtained a rule nisi to set aside 
the nonsuit and for a new trial, 

Robinson, Attorney-G-eneral, shewed cause, he 
contended that the evidence of the person who had 
been the defendant's counsel at the first trial, had 
been well rejected, inasmuch as it would be impossi- 
ble for him to know whether his impressions had 
been received from what passed at the trial, or by 
confidential communications from his client. 

He cited the authority below, {a) 

That the second witness was rejected with equal 
propriety, as his testimony could only have been 
hearsay. 

And that as it was necessary for the plaintiff in 
the present action to shew that the verdict against 
Whitney, in the former action, had proceeded upon 
the ground of usury, and as he had not done so, he 
was properly nonsuited. 

Macaulay, contra, contended, that evidence should 
have been received from any bystander at the former 
trial of what had passed there. 

(a) Currie v. Walker ; Wilson v. Bartall, 4 T. R. 753. 



36,8 MICHAELMAS TEEM, 7 GEO. IV., 1826. 

That the erujorsement to Whitney having been by 
the former judgment proved to have been somehow 
or other void, it should be considered as a nullity. 
That Bidweli, the plaintiff, then takes the note as 
administrator and is entitled to recover. The usuri- 
ous transaction being nothing to Stanton, who gave 
the note, as it is to be presumed, upon a good con- 
sideration. 

That it would be absurd to suppose that a note, 
good in its original concoction, could be vitiated 
quoad the original parties upon the ground of usury 
between a subsequent endorser and endorsee. 

Robinson, Attorney-Greneral, in reply, contended, 
that Washburn, being a particeps criminis, could not 
have recovered, and that the present plaintiff, his ad- 
ministrator, was subject to the same objection. That 
the reason given by the late Chief Justice, at the 
trial, was very strong, viz., that Washburn, the in- 
testate, having received consideration for his endorse- 
ment to Whitney, could not in justice have received 
the amount Irom Stanton, which would be giving him 
double pay upon one note, he not being liable to re- 
fund to Whitney what he had received from him,. 

The counsel further observed, that although there 
was a judgment in favour of the present defendant at 
the suit of Whitney, it might hereafter be reversed, 
which might render him again liable. 

Sherwood, J., pronouncing the judgment of the 
court. — I think it was unnecessary at the trial of this 
cause to prove the fact of the usury in the transac- 
tion between 'W'ashburn and Whitney. 



MICHAELMAS TERM, 7 GEO. IV., 1826.- 369 

A copy of the judgment in the case of Whitney v. 
Stanton was admitted without objection on the part 
of the defendant, as testimony between the parties 
in the present suit, and they had a right to make 
such admission between themselves, if allowed to do 
so by the court. 

Evidence of the grounds of defence in that action 
was all that was requisite in this case to shew the 
illegality of the endorsement from Washburn to 
Whitney. 

It appears to me, that any person present it the 
trial of that cause, who heard the whole of the evi- 
dence, was competent to prove that the only defence 
set up was usury between the endorser and the en- 
dorsee of the note. Such proof connected with the 
judgment, so admitted by the parties, would have 
been presumptive evidence of the invalidity of the 
endorsement on the note from Washburn to Whit- 
ney, and would have been sufficient for the plaintiff 
until rebutted on the partof the defendant by strohger 
testimony. It would have shewn that the whole ques- 
tion respecting the usury had already passed in rem 
Judicatam, and was completely set at rest. 

I cannot agree in opinion with the learned judge 
who tried this cause, that if the endorsement from 
Washburn to Whitney was usurious, it became ne- 
cessary for the administrator of Washburn to obtain 
a transfer of the note from Whitney before he could 
support an action upon it; the endorsement to Whit- 
neyj being usurious, was absolutely null and void, 
and after a legal decision on this point, the note must 
47 



370 MICHAELMAS TERM, 7 GEO. IV., 1826. 

be considered as never transferred from Washburn 
to Whitney; such transfer and endorsement cannot 
be illegal at one period and legal at another. 

In my opinion the plaintiff is clearly entitled to a 
new trial. 

Per Curiam. — Rule absolute. 



Shuck v. Ceanston. 

A prisoner insolvent applying for his weekly allowance, is sufficiently de- 
scribed in the affidavit, as a prisoner in execution in the gaol of the Mid- 
land District, at the suit of the plaintiff. 

Cartioright moved for an order of court for the 
prisoner's weekly allowance. The affidavit described 
the deponent as a prisoner in execution, in the gaol 
of the Midland District, at the suit of the plaintiff, 
without giving him any other residence or addition. 

Washburn opposed the application on the ground 
of insufficiency of the affidavit, but the court ruled it 
to be sufficient. 

Application granted. 



Haren v. Lyon. 

It seems that where a party purchases the goods of another at public sale, 
a notice given by the owner at such sale dispenses with the necessity of 
a demand and refusal to maintain trover, and a new trial will not be 
granted upon the ground of fresh evidence, it not appearing that it could 
not have been produced at the former trial. Fraud cannot be presumed 
contrary to a verdict. 

This was an action of trover tried at the assizes, 
and a verdict for the plaintiff for £17, under the fol- 
lowing circumstances -. 



MICHAELMAS TBRM, 7 GEO. IV., 1826. 371 

A Mr. Steel died intestate, leaving Mrs. Steel, his 
widow, in possession of his effects. 

The plaintiff had been servant to Steel, and con- 
tinued in the service of Mrs. Steel after his decease, 
and a sum having accrued due to him for wages, she 
gave him a yoke of oxen (as was stated by plaintiff's 
witnesses) in payment or satisfaction of his demand, 
but Mrs. Steel herself stated in evidence, that they 
were only put into the plaintiff's possession to pro- 
tect them from the claims of the deceased Mr. Steel's 
creditors. 

The plaintiff" continued, however, in the possession 
or superintendence of them, (for the testimony as to 
the nature of his possession was contradictory, one 
witness attesting that they were delivered to him in 
payment of his debt, and another that he liad told 
him that he considered them as in his, plaintiff's, 
possession, only for the benefit of Mrs. Steel,) until 
they were sold at public auction with other effects 
belonging to the deceased Mr. Steel. 

The defendant became the purchaser of the oxen, 
took them into his possession, and the plaintiff, in 
consequence, brought the present action. 

No demand was proved to have been made by the 
plaintiff previous to action brought, but notice had 
been given at the sale, that he had a claim upon 
them. 

Robinson, Attorney-Greneral, having obtained a 
rule nisi to enter a nonsuit, or grant a new trial on 
the grounds: 



372 MICHAELMAS TERM, 7 GEO. IV., 1826. 

First. — That Mrs. Steel had no power to sell, and 
her sale was fraudulent. 

Secondly. — That fresh evidence had been dis- 
covered since the trial. 

Thirdly. — That no demand had been made before 
action brought. 

Fourthly. — That the verdict was contrary to evi- 
dence. 

Macaulay shewed cause. — As to the first ground, he 
contended that Mrs. Steel, having continued in the 
possession and management of her husband's effects, 
(a) must be considered as an executor de ion tort, 
and so any payment made by her was valid; that the 
evidence of the delivery by Mrs. Steel to plaintiff 
being fraudulent, was contradicted by other testi- 
mony, and the jury, who were the judges of facts, 
had determined them in the plaintiff's favour; that 
they considered, no doubt, that as there was a bona 
fide debt due to plaintiff, it was most probable that 
the oxen were delivered to him in its satisfaction; 
that even assuming the sale to the plaintiff to have 
been made for the purposes stated by Mrs. Steel, it 
was good as between the parties, and could only be 
void as against creditors, in which situation it does 
not appear that the defendant stood; he should have 
shewn a judgment in his favour. 

Assuming, also, that Mrs. Steel had, in some sort, 
continued in possession of the cattle, which had been 
represented by the defendant's counsel as an evidence 

{a) Mountford v. Gibson, 4 East, 441. 



MICHAELMAS TERM, 7 GEO. IV., 1826. 373 

of fraud, he contended it could only be so as against 
creditors, and that the delivery proved was agreeable 
to the cases in East, (o) 

These arguments, he contended, also answered the 
objection to the verdict being contrary to evidence, 
the judges of facts, namely, the jury, having weighed 
the contradictory testimony, and determined in the 
plaintiff's favour. 

As to the ground for a new trial, viz., the finding 
of fresh evidence, he contended that the affidavit of 
the defendant was insufficient, as merely stating that 
he had discovered fresh evidence, without stating its 
nature, for that it did not appear thereby, but that 
the evidence discovered was some omission of the 
witnesses already examined, which was no ground 
for such application, as laid down in Tidd. 

As to the third objection to the verdict, namely, 
want of demand before action brought, he contended 
that the plaintiff's possession being found by the jury, 
was au answer to it, particularly as his claim to the 
oxen was known at the second sale. 

He observed that the smallness of the damages, 
coupled with the fact of the plaintiff's being a bom 
y?^e creditor, would materially influence the court in 
their deciding against this application. 

Robinson, Attorney-G-eneral, contra, contended, 
that no inference was to be drawn from the cases 
cited on the other side, that Mrs. Steel had any 

(o) Eugg V. Minety, 11 East, 209 ; Whitehouse v. Frost, 12 East, 613. 



374 MICHAELMAS TEEM, 7 GEO. Wi, 1826. 

power to deliver the oxen in question to the plaintiff, 
but the contrary; that they were cases where the 
executor de son tort had been in a regular course of 
administration, but did not apply to, or indeed com- 
pletely rebutted, a case like the present, where the 
wrongful act was the only ground of considering the 
party executor. 

That Mrs. Steel, not having been in a capacity to 
maintain trover for any of her husband's property, 
was not in a situation to transfer any part of it to 
another. 

That Mrs. Steel continuing in possession (for Ha- 
ren merely managed the oxen for her benefit) was 
an evidence of fraud, as laid down in the term reports, 
where it is determined that a creditor taking an abso- 
lute bill of sale, but allowing the debtor to continue 
in possession, avoided the sale, {a) 

In the case cited there was no evidence of fraud, 
but a mere stipulation that the goods were to remain 
in the debtor's possession for a limited time. 

He contended further, that there was no evidence 
of such a delivery as the Statute of Frauds contem- 
plated. That statute requires, that in sales of goods 
above ten pounds value there shall be an actual 
proveable delivery, which is not pretended in this 
case, and the necessity for which no existing debt 
between the parties can dispense with. 

That the positive testimony of Mrs. Steel should 
have outweighed the mere suppositions of the other 
witnesses, 

(ffl) Edwards v. Harben, 2 T. E. 387. 



MICHAELMAS TERM, 7 GEO. IV., 1826. 375 

That as the defendant had not taken the oxen from 
the plaintiff, but had bought them at a public sale, a 
demand was necessary before action brought, for no 
case exists to shew that a mere possession, without a 
tortious taking, dispensed with a previous demand. 

Chief Justice. — To intermeddle with the goods of 
an intestate, without taking letters of administration, 
constitutes an executorship de son tort, as if he use 
them or sell them, or pay or receive debts, or milk 
the cows of the intestate, or distribute the goods to 
the poor, or if he only take a dog of the intestate, or 
any part of his goods, or if a wife take more for her 
paraphernal!^ than is suitable to her degree, as laid 
down in 5 Coke, 30; Dyer, 166; Croke Eliz. 114, 120, 
472, Salk. 313; but the mere intermeddling with the 
goods of intestates, from the necessity of the case or 
for their preservation from injury, without using or 
applying them to the benefit of the party, will not 
constitute an executor de son tort. 

Except in some particular cases, the courts know 
no limitation, but grant or refuse new trials as it may 
tend to the advancement of justice, as laid down by 
Lord Kentfon in the term reports, (a) If there be 
contrariety of evidence on both sides, the court will 
never grant a new trial notwithstanding the judge be 
of opinion that the weight of evidence was against 
the verdict as laid down in Wilson; and although a 
verdict be against evidence, the court will not grant 
a new trial if the action be frivolous or vexatious, 
and the real damage small, as laid down in Burrow ; 
and new trials are never granted upon motion of a 



(a) 1 WiUs. 98 ; 1 T. E. 84 ; 2 T. R. 113. 



376 MICHAELMAS TERM, 7 GEO. IV., 1826. 

party, where it appears he might have produced and 
given the material evidence at the trial, the omission 
of which is urged as a ground for a new trial, because 
it would tend to introduce perjury, and there would 
never be an end to causes if once a door was opened 
to such applications, (a) 

Sherwood, J. — The' widow, Steel, who sold the 
goods in question to the plaintiff, had the possession 
of them for a long time after the death of her hus- 
band, and made use of them on all occasions as her 
own property. To the rest of the world she appeared 
to be the owner; no executor or administrator was 
ever appointed. Such possession, under such circum- 
stances, makes the possessor executor de son toj-t, 
according to the authority in 3 Bacon, Abr. 21; also 
in 1 Com. Dig. 365. I think the present case is not 
within the 17th section of the Statute of Frauds, as 
it was in evidence that the goods were delivered at 
the time the sale was made. The other objection is 
that the sale was fraudulent; contradictory testimony 
was given on this point at the trial, and the jury who 
are the constitutional judges of the facts and the cre- 
dibility of the witnesses, on both sides, have found 
by the verdict that no fraud existed, and I- think no 
presumption can be admitted against such finding. 

Per Curiam. — Eule discharged. 

(o) Salk. 647; Stra. 691. 



michaelmas term, 7 geo. iv., 1826. 377 

Dob ex dem. Robertson v. Metcali?. 

Where judgment is obtained against the casual ejector in consequence of the 
tenant in possession having neglected to give notice to his landlord, this 
court ■will set the judgment and writ of possession aside, and compel the 
tenant to pay costs. 

Robinson, Attorney-General, had obtained a rule 
nisi to set aside the judgment and writ of possession 
issued and executed thereon, and that it be referred 
to the master to tax the lessor of the plaintiff his 
costs occasioned by the judgment and taking posses- 
sion, together with the costs of the application, which 
costs, when taxed, should be paid by the tenant in 
possession, Metcalf. 

This application was made on the part of Williams, 
the landlord of the premises in question, on the 
ground that the tenant in possession had not given 
him any notice of the declaration served, and upon 
an affidavit of merits. 

Macaulay shewed cause. — He contended that on 
the authority of the cases the landlord was not en- 
titled to the summary interference of the court, but 
must resort to his tenant under the statute, and, if he 
had merits, might bring an ejectment in his turn. 

He relied upon the cases below, {a) 

Robinson. Attorney-General, contra, observed, 
that the case in 3 Taunton did not apply. 

That the decisions in the King's Bench in England 
were in favour of the landlord, and were much more 
reasonable. 

That by admitting him to the trial of his cause, 



(a) 3 Taunton, 506 ; 4 Taunton, 820 ; Strange, 1242. 
48 



378 MICHAELMAS TERM, 7 GEO. IV., 1826. 

they would only do that at once which might be done 
by a circuitious process, to force him to which would 
be a hardship; he urged the great inconvenience of 
allowing landlords to be divested of their estates by 
the probable collusion of tenants, or even casual oc- 
cupants, which was frequently extremely difficult to 
be proved. 

Chief Justice. — The point in this case is whether 
judgment by default, and a writ of possession exe- 
cuted thereon, obtained in consequence of the tenant 
in possession not having given notice to his landlord 
of the declaration in ejectment, by which means the 
landlord was deprived of an opportunity of defending 
his title, shall be set aside. The decisions in the 
King's Bench and Common Pleas are clearly at vari- 
ance on this point; the case reported in the 4th 
Taunton holds, that where the judgment is perfectly 
regular, and no collusion between the plaintiff and 
tenant, it must stand, notwithstanding the injury ac- 
cruing to the landlord for want of such notice, who 
must look to his tenant for remedy; on the ground 
that the court could not interfere with the rights of 
a plaintiff not in fault, and who was perfectly regular 
in his proceedings. 

This doctrine is seemingly so reasonable that we 
could not avoid being forceably struck with it, and 
especially when we found that it was not at all inter- 
fered with (as was at first supposed) by the decision 
in the case of the Grovers' Company v. Roe, in the 
5th Taunton, which turned upon a suggestion of col- 
lusion between plaintiff and tenant; but the doctrine 
laid down by the Court of King's Bench in Troughton's 



MICHAELMAS TERM, 7 GEO. IV., 1826. 379 

case, 4th Burrow, is entirely different on this point, 
and is perhaps,when closely examined, better adapted 
to the ends of justice in actions of this nature, and 
goes on the principle that it is better that a plaintiff, 
however regular, should be delayed in his remedy, 
than that a landlord should be dispossessed of his 
estate, without an opportunity of defence, by the 
treachery or other default of his own tenant, and 
which tenant perhaps (as we know to be ex- 
tremely probable in nine cases in ten in this country) 
may not be of sufficient responsibility to answer so 
important an injury to the landlord. 

But be the preference due to the opposite doctrines 
as it may, we are specially bound by the practice of 
the King's Bench, unless where it may operate pal- 
pable injustice, which we conceive it does not in the 
present case. 

We will, therefore, pursue the course adopted in 
the case of Troughton, and therefore direct that the 
present rule be enlarged, that the plaintiff's costs be 
taxed by the master, and that an order be served on 
the tenant to shew cause why he should not pay those 
costs. 

Sherwood, J. — This is an application to the court 
on the part of the landlord for leave to enter into the 
common consent rule and defend the action under the 
11 Greo. II., c. 19. Itappears that judgment, by de- 
fault, has been entered against the casual ejector, 
and that the tenant in possession gave no notice of 
the action to his landlord. The lessor of the plaintiff 
contends, that as no collusion appears between him- 



380 MICHAELMAS TERM, 7 GEO. IV., 1826. 

self and the tenant in possession, the landlord cannot 
be permitted to defend after judgment by default has 
been regularly entered; G-oodtitle v. Badtitle, 4 Taun- 
ton, 820, and the G-rovers' Company v. Eoe, 5 
Taunton, 205, are cited in support of the plaintiff's 
position. These cases do certainly establish the 
practice in the Court of Common Pleas to be as stated 
by the plaintiff. 

It appears, however,^from the cases, Troughton v. 
Roe, 4 Burrow, 1996, and Jones v. Edwards, 2 
Strange, 1242, that the Court of King's Bench in 
England puts a more liberal construction on the 
statute. The doctrine of these cases is, that the rule 
which requires service on the tenant in possession 
was made with a view that the tenant should give 
notice to his landlord; and if the intention of the rule 
is not substantially complied with, the court will in- 
terfere and set the matter right. 

I approve of this practice in preference to that of 
the Court of Common Pleas, and think the landlord 
in the present case should be allowed to defend the 
action, for if the possession is changed his situation 
will be much worse, and the question relative to the 
title will still be undetermined. 

Per Curiam. — Rule absolute. 



EVERINGHAM V. ROBINETT. 

A supplementary affidavit allowed to be filed after judgment entered upon 
cognovit, stating that it had been taken as prescribed by the rule of this 
court. 

Judgment had been entered upon a cognovit ac- 
tionem in this cause; but the person who attested the 



MICHAELMAS TEEM, 7 GEO. IV., 1826. 381 

execution of the instrument had omitted to swear 
that it had been taken through the intervention of an 
attorney, agreeable to the order of court. 

Robert Baldwin applied for leave to file a supple- 
mentary affidavit of that fact. 

Application granted. 



Cameron and Wipe v. McLean. 

In an action for libel, wherein the plaintiff recovered only twenty shillings 
damages, the judge who tried the cause refused to certify. 

This was an action for a libel in which the plain- 
tiffs recovered twenty shillings damages only. 

George Jarvis applied for a certificate of the 
judge who tried the cause, to restrain the plaintiffs' 
costs to the amount of damages recovered, under the 
43 Elizabeth, c. 6. 

Macaulay, contra, observed, that there being no 
inferior jurisdiction in this country to which the 
plaintiff could have preferred his complaint, it would 
be unreasonable to deprive him of his costs. 

Application refused. 



Campbell v. Berrie, one, &c. 

a rule to plead where necessary may be given at any time in vacation. 

The bill was filed against the defendant in Easter 
vacation, as of the preceding term, with notice to 
plead in the first four days of Trinity, but no rule to 



382 MICHAELMAS TERM, 7 GEO. IV., 1826. 

plead was given until Trinity vacation, and not within 
the first four days after the term. 

The plaintiff signed interlocutory judgment and 
assessed his damages in Trinity vacation after the 
expiration of the rule to plead. 

Macaulay moved for a rule nisi to set aside the 
interlocutory judgment and proceedings thereon as 
irregular, and cited the authorities below, (a) 

Robert Baldwin, contra, contended, that the sixth 
order or rule of this court authorised the practice 
pursued by the plaintiff, the rule to plead being one 
of the class of rules therein mentioned, as authorised 
to be taken out in vacation as well as term. 

Per Curiam. — Application refused. 



Andrus v. Burwell. 

Semble, that if in an action upon the case for not manufacturing four hundred 
bushels of wheat into flour theplaintiflF recovers damages equal to the value 
of the wheat delivered to the defendant, he cannot bring an action for goods 
sold for a part of the wheat which had in point of fact been re-delivered 
to the plaintiff, and that such re-delivery should have been given in evi- 
dence in mitigation of damages ; and that an action upon the common 
counts could not at any rate be sustained in such case. 

This was an action of assumpsit for goods sold and 
delivered, tried at the last assizes for the Grore Dis- 
trict, with a verdict for the defendant — the following 
were the circumstances; about two years ago the 
present defendant had delivered to the present plain- 
tiff four hundred bushels of wheat to manufacture 
into flour; one hundred and twenty-six bushels had 

(a) Impey, 203, 4, 5 ; 1 Sellon, 300 ; 1 Archbold's, 131 ; Tidd, 490, 3. 



MICHAELMAS TERM, 7 GEO. IV., 1826. 383 

been re-delivered as unfit for manufacture. An action 
upon the case was shortly afterwards brought by the 
present defendant against the present plaintiff, for 
not manufacturing the flour agreeable to contract, 
and he recovered a general verdict for a sum equal 
to the value of the wheat originally delivered. 

At the trial of the present cause the judge directed 
a verdict for the present defendant, observing that the 
re-delivery of the 126 bushels should have been given 
in evidence in mitigation of damages at the former 
trial, and that he considered also that the plaintiff 
could not, upon a common count for goods sold and 
delivered, recover the value of wheat belonging origi- 
nally to the defendant, and returned to him in con- 
sequence of its bad quality. 

Robert Baldwin now moved for a rule nisi to set 
aside the verdict on the ground of misdirection. 

He contended that the defendant having recovered 
in the former action the full consideration for the 
non-delivery of four hundred bushels of wheat, the 
whole quantity delivered by him for grinding, 
although he had in fact received back 126 bushels, 
the plaintiff was in this action entitled to recover the 
value of the wheat re-delivered, as that could not 
have been taken into the consideration of the jury. 

He observed, that it could not have been pleaded 
as a set-off to the former action, which being a special 
action upon the case the damages were entire, and 
that the defendant, by that action, having disaffirmed 
the receiving the returned wheat as a part perform- 



384 MICHAELMAS TERM, 7 GEO. IV., 1826. 

ance of the grinding contract, it was but common jus- 
tice that the present plaintiff should be allowed to 
recover it in some shape, and he contended that the 
count for goods sold was sufficient to sustain the 
action. 

The Solicitor-General, contra, insisted that the 
judgment in the former action was a bar to the pre- 
sent; for that it appearing by the record that the 
plaintiff in the former action sought to recover the 
value of four hundred bushels of wheat not manufac- 
tured according to contract, the present plaintiff can- 
not now turn round and recover back the value of a 
part of the same flour. 

That it was impossible now to ascertain the grounds 
of the former verdict. They may have credited the 
defendant in that action with the amount of the wheat 
now sought to be recovered, and mulcted him for the 
breach of his contract in an equal or greater amount. 

That the subject of the present action was a part 
of the res gestce in the former, and could not be sepa- 
rated from it. 

He also contended that it was absurd to suppose 
that a person could, in an action for goods sold, re- 
cover against another for his own goods re-delivered. 

Per Curiam. — Application refused. 



michaelmas term, 7 geo. iv., 182g. 385 

Hawley v. Ham. 

A nonsuit cannot be moved for in bank unless it has been moved for at nisi 
prius, and the point reserved by the judge with the plaintiff's consent. A 
recognition by a party that A. is his ■wife, is sufficient to charge him with 
necessaries, although they do not cohabit, having in fact separated, and 
although she may not stricii juris be his wife. 

This was an action for the maintenance of the de- 
fendant's wife, tried at the assizes for the Midland 
District, and a verdict for the plaintiff for £2 10s. 

It appeared in evidence that the defendant had 
been married for several years to the daughter of the 
plaintiff; the ceremony had been performed by a 
sectarian minister under the provincial statute. 

The defendant and his wife separated some time 
after his marriage, and she had returned to her 
father's house and continued to reside there until the 
commencement of the present action, shortly previous 
to which overtures had been made by her friends 
for a re-union, upon which the defendant wrote to 
the plaintiff authorising his wife to remain with him 
for a month longer, to give the defendant an oppor- 
tunity of considering and replying to the proposi- 
tion, which he, however, afterwards negatived. A 
nonsuit had been moved for at the trial upon the 
ground that the minister who had performed the mar- 
riage ceremony had no sufficient authority so to do, 
first, as not being one of the persons designated in the 
provincial statute, and secondly, as having married 
persons not belonging to his congregation. The judge 
who tried the cause refused the nonsuit and directed 
the jury to find a verdict for the plaintiff, at least to 
the amount of defendant's wife's board for the period 
mentioned in his letter. 

Boulton moved for a rule nisi to enter a nonsuit or 
49 



386 MICHAELMAS TERM, t GEO. tV., 1826. 

grant a new trial, and proceeded to state the grounds 
taken at nisi prius. 

Macaulay made a preliminary objection to that 
branch of the motion which related to a nonsuit, con- 
tending, that as no point had actually been reserved 
at the trial, such a motion could not be entertained 
in bank. That the only motion competent to the de- 
fendant to make was that for a new trial. 

Buulton, Solicitor-General, contended as to this 
point, that the objection to the legality of the mar- 
riage having been made at the trial, it was compe- 
tent to the defendant to move for a nonsuit upon that 
objection in bank, although the point had not been 
reserved, and he relied upon the dictum of Lord 
Ellenborough in Gould and another v. Eobson and 
another, in which case (which was a motion for a new 
trial, although no point had been reserved) his 
lordship observed, " that in strictness the defendants 
were entitled to enter a nonsuit, the objection having 
been taken at the trial." 

Sherwood, J. — The later case of Minchin v. Cle- 
ment (a) goes to establish a contrary doctrine. In 
that case the defendant's counsel contended, as is 
now done, that the objection having been made at 
nisi prius a nonsuit might be moved, but his position 
was overruled by Lord Ellenborough. Macbeath v. 
Haldmiand {b) is also an authority to shew that a 
plaintiff cannot be nonsuited without his consent. 

The Solicitor-General observed, that Lord Ellen- 
borough's reasonings did not apply to the practice in 

(^ 1 B. & A. 252. (4) 1 T. E. 176. 



MICHAELMAS TERM, 7 GEO. IV., .1826. 387 

this country, as there was no court to which a bill of 
exceptions lay, therefore a nonsuit was more beneficial 
to plaintifiF, as its propriety might be considered in a 
court of appeal. 

That it was more beneficial to a defendant also, as 
it determined the law upon the case. 

That the reason for requiring the grounds of a non- 
suit to be stated at nisi prius, was to prevent a sur- 
prise upon the plaintiff in bank, and was equally 
answered by its being mentioned, as by its being 
formally moved. 

Macaulay, in reply, insisted that as a plaintiff can- 
not be nonsuited without his consent, it follows that 
a motion cannot be made to nonsuit him in bank, 
unless he has consented to the reservation of points 
at nisi prius. 

That the assumption by defendant's counsel, that 
there was no court of error in this country in which 
a bill of exceptions might be argued was probably 
incorrect. 

That another objection to a nonsuit was, that in the 
event of its being granted, the plaintiff would pay 
costs; but if a new trial was granted he might avoid 
costs by discontinuing. 

That there being a special act of parliament to 
authorise the court to pronounce nonsuits in certain 
cases, was a strong argument to shew that it could 
not be done in others. 



388 MICHAELMAS TERM, 7 GEO. IV., 1826. 

The court, upon this preliminary point, determined 
with the plaintiff's counsel, viz., that a nonsuit could 
not be moved for in bank, unless it had been moved 
for at nisi prius, and the point reserved by the judge 
with the plaintiff's consent. 

The Solicitor-General was proceeding to state the 
circumstances of the illegality of the marriage as the 
grounds for a new trial, but was directed to assume 
that as a fact, coupled with the circumstance of the 
defendant's recognition of plaintiff's daughter as his 
wife, by the letter produced in evidence at the trial. 

He then contended, that the marriage being in- 
valid, the woman's case, whose maintenance was 
sought to be recovered, must be considered in the 
same light with thait of any other female cohabiting 
with a person, in which case the supposed husband 
was liable during the cohabitation only, but when 
that ceased it was the duty of persons giving credit 
to enquire whether there had been an actual mar- 
riage. The counsel drew an analogy between the 
present action and that against a tenant for not cul- 
tivating a farm in a husband-like manner, in which 
action actual tenancy, and not mere occupation, must 
be proved. 

That in cases of a marriage dejure, the legal obli- 
gation to maintain' the wife continued after what in 
common colloquy was called separation, but not so 
after a mere cohabitation was discontinued. 

The counsel cited the authority below (a) as in 

(a) 4 Campbell, N. P. 



MICHAELMAS TEEM, 7 GEO. IV., 1826. 389 

point, observing that none of the cases were founded 
upon an illegal marriage. 

Macaulay observed, that in this case the plaintiff 
must establish a right, he must give sufficient evi- 
dence of the woman being the defendant's wife de 
facto; that that had been done or the plaintiff would 
have been nonsuited at the trial; that the judge 
considered so, and refused a nonsuit. 

That it was a question of fact which the jury had 
decided. 

That for the period of a month mentioned in the 
letter there had been clearly no separation, after 
that time the plaintiff was directed not to credit. 

The Attorney-General, in reply, observed, that in 
reason, as well as in law, it was perfectly clear that 
if a man, after cohabiting with a woman, was to sepa- 
rate from her, but still hold her out as his wife, he 
would be liable for necessaries; but that after a period 
of eight or ten years has elapsed from the separation 
without such recognition, the question naturally 
arises, why he should be liable ? and the answer is, 
that nothing but a strict legal obligation can make 
him so. 

j^Q j_ — The general doctrine we admit, but can 
you apply it to the particular case ?] 

The counsel further observed, that as in the action 
for not cultivating in a husband-like manner, the 
plaintiff must declare against the defendant as tenant 



390 MICHAELMAS TEEM, 7 GEO. IV., 1826. 

and prove him such; so in this action, the plaintiff in 
his pleadings must state the woman to be the wife of 
defendant, and shew her to be so dejure or de facto; 
either legally married or cohabiting, or acknowledged 
as a wife — a mere statement in the declaration that 
she had once lived with the defendant would be as 
demurrable as the statement of a mere occupation 
would be in the former case. 

Chief Justice. — I consider that the facts of this 
case take it out of the general doctrine. The woman 
having been recognised by the defendant as his wife 
nearly'to the time of bringing the action, renders him 
liable. 

Sherwood, J, — In the case cited there was no re- 
cognition, but in the one before the court there was. 
I consider also that the parties having been actually 
married, though perhaps by a minister not strictly 
authorised to perform the ceremoay, distinguishes 
this case from others; the case in Campbell shews 
that although parties do not cohabit, yet if the sup- 
posed husband does other acts to recognise the 
woman as his wife, he makes himself liable for her 
necessaries. 

Per Curiam. — Application refused. 



Brown v. Hudson. 

Where the person of an insolvent debtor is discharged from arrest by a for- 
eign authority, this court will not set aside an arrest made under the pro- 
cess of this court for the same cause of action, it not being bound to model 
or restrain its course of proceeding by that of other countries. 

Robinson, Attorney-General, applied for a rule nisi 
to discharge the defendant from prison upon filing 
common bail, upon the ground that his person had 



MICHAELMAS TERM, 7 GEO. IV., 1826. 39l 

been discharged from imprisonment under an insol- 
vent law of the state of New York. 

The defendant had been arrested in this country 
upon a contract entered into with the plaintiff in the 
state of New York, had remained in prison, and after 
suffering judgment to pass by default and a ca. sa. to 
issue, made this application. 

His counsel contended, that the general maxim 
applied, which establishes that no person is to be 
arrested twice for the same cause. 

That the general principle as laid down by Lord 
Mansfield in Pedder v. McMaster, {a) "that a dis- 
charge from debt by a competent jurisdiction in a 
foreign country operated as a discharge in any 
other," and he contended that a partial discharge, as 
in the present case a discharge from imprisonment, 
was within the principle, and should be equally re- 
cognised. 

That were this merely an application to set aside 
proceedings for irregularity, it might be contended 
that the defendant was too late in his application, but 
that it could never be too late to discharge a prisoner 
illegally confined. 

That this case was analogous to that of a debtor, 
who, if once supersedeable, is always supersedea- 
ble. (5) 

That the case of Sharpe v. Iffgrave (c) was in 



(a) 8 T. K. 609. (i) Kobertson v. Douglas, 1 T. R. 191. (c) 3 B. & P. 394. 



392 MICHAELMAS TERM, ? GEO. IV., 1826. 

point to shew that a debt might continue to exist 
without the defendant's continuing liable to arrest. 

In answer to the objection which might be made 
to this application, on the ground that it had been 
made and decided by the court in a former term, he 
observed that the grounds of the application were 
different, inasmuch as it had not been formerly repre- 
sented to the court, that the ground of action had 
arisen in the foreign jurisdiction. 

Robert Baldwin opposed the application, contend- 
ing that it was the same and no other than that 
which had formerly been made to the court, for that 
as the place of contract could not alter the merits of 
the defendant's application, so neither could it be 
considered as constituting other grounds. 

That the case cited to shew that a prisoner once 
supersedeable was always so, did not apply, or was 
against the application, for if a prisoner pleaded, 
after being supersedeable, he lost his opportunity of 
discharge. 

Chief Justice. — T consider that there is a wide 
distinction to be taken between the case where a debt 
is extinguished, and where, as in the present case, 
the mode of its recovery only is modified by the laws 
of a foreign country. 

In the latter case the plaintiff is left at liberty to 
recover his demand here, and that by the course of 
proceeding which is usual in this country. 

Sherwood, J. — I consider that the doctrine laid 
down by Lord Ellenhorough in the case of Imlay v. 



MiCHAilLMAfe DERJJ, i QB6. IV., 1826. 393 

EUeffsion, (a) is decisive upon that point, and there- 
fore, that upon that ground this application must fail. 
I think it would fail too upon the ground of laches in 
the defendant. If he had made this application shortly- 
after his arrest, the plaintiff would not have been put 
to the expense which he has, in proceeding to judg- 
ment and execution. 

Per Curiam. — Application refused. 



Grey v. Holme. 

Time may be granted to plead partnership in abatement, but will not be 
renewed Upon the gi'ound that it bad been oihitted to bis filed upon the 
ground of overtures of accommodation. 

Declaration served in Trinity Vacation with the 
usual notice to plead in eight days. Defendant had 
obtained a judge's order for six weeks' time to plead 
(without terms) for the avowed purpose of pleading 
in abatement. 

During the six weeks overtures were made by the 
plaintiff to settle the present and other suits, and it 
was agreed on both sides ttat there should be no pro- 
ceedings while such overtures were pending; during 
the present term the time for pleading would expire. 

Robert Baldwin applied for a further time sufficient 
to enable the defendant to procure an affidavit of 
the truth of his plea (which was partnership) from 
Niagara. 

Macaulay opposed the application, 0bBerving that 
a month of the six weeks, granted by the judge's 

(a)2E. 3B. 453. 

50 



394 MICHAELMAS TERM, 7 GEO. IV., 1826. 

order, had elapsed before any overtures as to a com- 
promise had taken place, and suggested a doubt as 
to the regularity of granting time to plead in abate- 
ment. 

Sherwood, J. — I consider that the time for plead- 
ing was properly granted, and at the time of granting 
it I supposed it acquiesced in. 

Application refused. 



The King v. The Justices of the District op Nia- 
gara- UPON the relation op Edward McBride, 
Esquire, M. P. 

This court refused to issue a mandamus to justices of a district to order par- 
liamentary wages to be paid to the representative of a town, under the 
provincial statute. 

This was an application to the court for a rule to 
shew cause why these magistrates should not be 
directed by mandamus of this court to issue an order 
to the treasurer of the district, to pay Edward Mc- 
Bride, Esquire, his parliamentary wages as a member 
for the town of Niagara. 

The question arose upon the provincial statute 43 
G-eo. III., c. 9, entitled, "An act the more conveni- 
ently to collect the compensation to the members of 
the House of Assembly for their attendance on their 
duty in parliament," &c. This statute enacts, " that 
after every prorogation and dissolution of the Assem- 
bly of this province, it shall and may be lawful for 
every member thereof, having attended, to receive 
from the Speaker of the House of Assembly a war- 



MICHAELMAS TERM, 7 GEO. IV., 1826. 396 

rant under his hand and seal, signifying the time that 
such member hath attended his duty in the said As- 
sembly; and every member possessed of such war- 
rant shall and may ask, and demand of the justices 
of the peace for the district in which the county or 
riding represented by such member may be situate, 
in their general quarter session^ assembled, a sum 
not exceeding ten shillings per day for every day 
that such member shall have attended, &c., which 
sum it shall and may be lawful for the said justices 
to levy, by assessment to be made on every inhabi- 
tant and householder in the several parishes, town- 
ships, reputed townships or places within the county 
or riding represented by such member, in the same 
manner and form as by law any assessment may 
now or hereafter be levied for any public purpose in 
any district of this province, and for the said justices 
to issue their order upon the treasurer, &c." 

Boulton, Solicitor-Greneral, contended in favour of 
the application, that it was evidently the intention 
of this statute that every member thereof should re- 
ceive his wages, for to what purpose was every mem- 
ber, as directed by the statute, to receive a warrant, 
if it was not with a view to receiving his wages. 

If there could possibly be a doubt it was removed 
by reference to the words of the 33 G-eorge III., c. 
3, the 30th clause of which states, "that whereas it 
was the ancient usage of that part of Great Britain 
called England for the several members representing 
the counties, cities and boroughs therein, to receive 
wages, &c.," evidently shewing that it was the inten- 
tion of that act, that every member was intended; 



396 MICHAELMAS lEEM, 1. GEO, IV., 1826; 

and observed, that although this clause of that statute 
was repealed, yet being in pari materia it might well 
be called in aid to explain the latter statute. 

He further contended, that if the diflB.oulty arose 
in the mode of collection, that the words of the statute 
in question which directs the assessment to be made 
upon every inhabitant householder in the several 
parishes, townships, reputed townships, or places 
were sufficiently general to authorise an assessment 
upon the town which the member represented, and 
he consideredthat the amount might be levied in the 
same manner as sums were levied under the police 
act. He observed further, that it being evidently 
the intention of this statute to give every member 
wages, that it should receive the same liberal con- 
struction with the statute circum^pecte agite, which^ 
although it only mentions the Bishop of Norwich, has 
been held to extend to all bishops, and that to give 
this st^ytute the effect intended, the towns sending 
members should be considered as included in the 
provision giving wages to counties and ridings. 

Baldwin, same side, considered that the town 
members should be paid out of the district, funds, for 
that if they were not this absurdity would follow, 
that the inhabitants of towns would be taxed for pay- 
ing members who did not represent them, without 
ha,ving a reciprocal advantage. 

That nothing could be more just than that the dis- 
trict at large should pay them, as they, in fact, 
represented the district at large as well as the parti- 
cular town. He considered, however, that if the 



MICHAELMAS TERM, 7. GEO. IV., 1826. 397 

general funds of the district should fail, these mem- 
bers might be paid; by a levy under the police act in, 
such towns as had a. police. 

Chief Justice. — By the 43 G-eorge III., provision 
is only made for payment of wages to the members 
of the House of Assembly representing counties and 
ridings. At that time there were no towns in this 
province sending members, consequently those poli- 
tical divisions could not have been within the con- 
templation of the legislature at the time. 

The 60 G-eorge III., c. 2, which authorises a repre- 
sentation for towns of a certain description and for a 
university, is altogether silent as to any provision for 
payment of parliamentary wages; and whether this 
omission was intended or not, I consider that a mat- 
ter ought to be very clear to induce this court to give 
an extended construction to any act of the legisla- 
ture, which has for its object the laying of any tax 
or assessment upon the subject, 

Shehwood, J. — This application is made under the 
provincial statute 43 Geo. III., c. 11. 

When that act was passed no representatives were 
sent from towns to the provincial parliament, and I 
think the phraseology of the statute is peculiarly ap- 
plicable to counties and ridings, and cannot properly 
be construed to extend to towns. The provincial 
statute 1 Geo. lY., was made seventeen years after- 
wards to increase the representation of the commons 
of the province, and enacts that members shall be 
chosen not only for counties but also for towns and 
a university when duly established. 



398 MICHAELMAS TERM, 7 GEO. IV., 1826. 

It appears to me that the legislature in 1803 in- 
tended to allow wages to such members only as were 
then sent to the House of Assembly, but did not in- 
tend at that period to provide wages for such mem- 
bers as might possibly be added to the representation 
at any future period. I think the allowance of mem- 
bers from towns was not even in contemplation when 
the statute 43 G-eorge III. was passed, and it did not 
actually take place till seventeen years afterwards. 

No assessment or tax should be laid on the people 
without an express law to warrant the levy. 

In all ambiguous cases where it is really doubtful 
whether the parliament intended a tax to be laid and 
collected for the use of individuals, this court will not 
enforce such a measure by granting a mandamus to 
the Court of Gj-eneral Quarter Sessions of the Peace, 
from legal inference, or mere intendment of law. I 
consider it a casus omissus to be supplied by an act 
of the legislature whenever its wisdom shall deem 
such a step advisable. 

Application refused. 



Brock v. McLean, Sheriff. 

If a defendant moTes a nonsuit and afterwards examines witnesses, the 
plaintiff is entitled to any benefit which he can obtain from their evidence 
in support of his case. An attorney (merely as such) is not authorised to 
discharge a defendant in execution, certainly not without receiving the 
debt, and the sheriff, so discharging a debtor upon his authority, will be 
liable as for an escape. 

This was an action for an escape, brought against 
the sheriff of the Midland District, under the follow- 
ing circumstances : 



MICHAELMAS TERM, 7 GEO. IV., 1826. 399 

Mr. Daniel Washburn, formerly an attorney of this 
court, became insolvent, and being about to leave 
this province, immediately previous to his departure 
instructed his clerk to discharge out of execution one 
White, a debtor, whom he had proceeded against at 
the suit of the plaintiff. 

After his departure, his clerk, who had in fact con- 
ducted the proceedings in the cause, and signed the 
writ of execution, wrote an authority to the defen- 
dant, who accordingly discharged the debtor. 

It appeared in evidence at the trial, that he, defen- 
dant, knew of Washburn's insolvency and departure. 

Some of the formal circumstances necessary to 
support the plaintiff's case, not having been proved 
by his witnesses, the defendant's counsel upon that 
ground, and upon the ground that the authority of 
the plaintiff's attorney was a sufficient warrant for 
the sheriff to discharge a prisoner in execution, 
moved for a nonsuit, which, being refused by the 
judge who tried the cause, the defendant's counsel 
proceeded to examine his witnesses, and upon their 
cross-examination the formalities necessary to the 
support of the plaintiff's case were elicited, and a 
verdict was taken for the plaintiff, with liberty to 
the defendant to move. 

Robinson, Attorney-Greneral, now moved for a rule 
nisi to set aside the verdict and enter a nonsuit, or 
grant a new trial. He insisted as a preliminary 
point, that the plaintiff, having failed in the proof of 
his case by his own witnesses, could not, after a mo- 



400 MICHAELMAS TEEM, 7 GEO. IV., 1826. 

tion for a nonsuit, be allowed to do so by a cross- 
examination of ihose of the defendant, and that the 
case must now be considered as standing as it did at 
the time the motion for a nonsuit was made at nisi 
prius; in support of this position he relied upon Mr. 
Justice Bulkr's dictum as reported in Bosanquet and 
Puller, viz., "that on a motion for a nonsuit, the 
court is to consider itself in the situation of the judge 
at the time of the objection raised." (a) 

Boulton, Solicitor-Greneral, as to this preliminary 
point, contended, that Mr. Justice BuUer's dictum 
was not to be construed to mean the time the defen- 
dant moved a nonsuit, unless he relied upon it, and 
declined giving evidence; but that if he did so, the 
plaintiff had a right to the benefit of any facts that 
might come put in the course of the examination of 
the 'defendant's witnesses. 

The court agreed upon this point with the plain- 
tiff's counsel, observing, " that the dictum was to be 
taken sub modo, that is, if the defendant relied upon 
his grounds for a nonsuit, by declining to examine 
witnesses upon his defence." 

The defendant's counsel proceeded to the principal 
ground of his application, viz., that the verdict was 
against law and evidence. 

He contended that by the general principles of 
law, the acts of the attorney were to be considered 
as the acts of the client; that it had been the constant 
practice in conformity to this principle, to discharge 
prisoners upon the authority of the attorney. 

(a) Cox V, Kilohen, 1 B, & P. 339, 



MICHAELMAS TERM, 7 GEO. IV., 1826. 401 

That it would be unreasonable to expect the sheriflF 
to ascertain before a defendant's discharge, whether 
the plaintiff had received his debt, and it would in- 
deed be impossible for him to do so, as he could re- 
quire no legal proof of such a fact from the attorney, 
if he thought proper to assert it. 

That a requisition of the sort would be equally 
hard upon defendants, many of whose plaintiffs lived 
out of this province, and who would frequently be 
kept in gaol an unnecessary length of time, if the at- 
torney's discharge was not sufficient to exonerate the 
sheriff without payment of the money, which was not 
done in nine cases out of ten. 

As to book authorities upon the subject, he ob- 
served that it was positively laid down in Eolle that 
the attorney might release a defendant in execution 
although he receives nothing; and although it is laid 
down in the same authority that he may acknowledge 
satisfaction on the record on receipt of the money, 
yet that mode of expression was not sufficient to 
overturn the other positive unconditional assertion, 
supported, as it has been, by the constant practice. 
He referred to the authorities below, [a) 

Boulton, Solicitor-Greneral, contra, contended, that 
as an attorney could not enter a retraxit, so neither 
could he discharge a defendant in execution; and for 
the same reason, viz., that he had no warrant to do 
either — his warrant being only to prosecute, and his 
authority ceasing with the judgment. 

That the dictum of Mr. Justice Dodridge, as re- 

(ffi) 1 Rolle, 291 ; 1 EoUe, 366, 7. 

51 



4ft2 MICHAELMAS TERM, 7 GEO. IV., 1826. 

ported in RoUe, was much invalidated by the dissent 
of Ooke, and was overruled by contrary decisions in 
the same reporter, and by the more modern authori- 
ties. 

Sherwood, J. — The application for a new trial is 
always to the discretion of the court; and if the mat- 
ter is not of sufficient importance, or if justice has 
been done, it is usual to refuse it. 

From the turn which the argument has taken, it is 
now only necessary to consider the principal point, 
which njay be reduced to the question, whether the 
attorney's general authority ceases upon judgment 
being obtained ? This appears to me to be decided 
by the modern cases, and particularly by that of 
Tipping V. Johnson, (a) and a sort of special authority 
which he has of suing out execution, or receiving 
money, or doing otter acts for the benefltof his client, 
do not interfere with this decision; but the discharg- 
ing a, prisoner in execution, without payment of the 
debt, is not an act of this description. Should a case 
ijQ,deed arise in which the attorney asserted that he 
had in fact received the money, the court would pro- 
bably consider that circumstance. 

As to the hardship of this case upon, the sheriff, it 
aippe9,rs that it was known to him that the attorney 
had. left, th^, province without the intention of return- 
ing^ and th^-t his circuin^tances were insolvent. Upon 
t}|e^ whole, it appears to ni,e, that it is the plaintiff 
who would have reason to complain, if a new trial 
were granted in a case where his debtor had been 
dischanged without any satisfaction. 

(o) 2 B. & p. 357. 



MICHAELMAS TERM, 7 GEO. IV., 1626. 403 

Chief Justice.— I consider that in this case there 
is no ground to grant a rule nisi. An attorney being 
deeply insolvent and having departed the province, 
and the sheriff knowing this, discharges a defendant 
upon the authority of the absent attorney, and that 
even in defiance of the plaintiff — where, in this case, 
is the tangible person, if the sheriff is not ? I con- 
sider that great injustice would arise by otertufmng 
this verdict. 

Per Cwnam.— Application refused. 



Clench v. HekdrIOKs. 

The King's patent gives the patentee an estate sufficient to inailitaiti irdsp&as. 

This was an action of trespass tried at the assizes 
for the Midland District, and a verdict for the plain- 
tiff for £5. 

The plaintiff gave his patent from the Ci'dWtt as 
evidence of title, but gave lia evldeftce of adtiial 
entry. 

The act of trespass cottststed in the defeu'daQt's 
having erected a shanty upon, aftd havilig cut and 
carried away timber from, the plaintiff's premises, a 
lot of wild land. 

Bethune moved for a rule nisi to set aside the ver- 
dict as being against law and evidence. He con- 
tended that a grantee under the King's patent had 
no other title than that which a bargain©© had under 
a deed of bargain and sale under the Statute of Uses, 



404 MICHAELMAS TERM, 7 GEO. IV., 1826. 

wlio could not bring trespass without first making an 
actual entry. 

Or than that of an heir upon whom the descent 
was cast, who could not, without entry, bring tres- 
pass against an abator. 

He suggested that the dictum in Plowden, which 
lays down that the King's grants pass an estate with- 
out livery, left it to the grantee to perfect his title 
(for the purpose of bringing trespass) by actual entry. 

He contended that he was supported in this posi- 
tion by the determination of this court in the case of 
Purdy qui tarn v. Eyder, in which case the King's 
patent was not considered as a protection to the de- 
fendant against the operation of the statute of Henry 
YH., made to punish persons transferring estates 
of which they had not been in possession. 

Boulton, Solicitor-G-eneral, same side, suggested 
that the defendant was in the situation of a disseisor, 
against whom an action real could not be brought 
without entry. 

Cartwright, contra, observed, that there was a 
great distinction between the case cited and the pre- 
sent. In that case Purdy had been many years in 
adverse possession, under a contract from Ryder, 
who had sold the land in violation of his contract, 
and opposed this application on the ground of the 
great public inconvenience which would ensue from 
granting it, as it was a well known fact that a very 
large proportion of the grantees of the Crown never 
took possession of their estates by actual entry. 



MICHAELMAS TERM, 7 GEO. IV., 1826. 405 

Sherwood, J. — It is objected by the defendant, 
that the King's patent does not give the grantee pos- 
session of an uncultivated lot of land mentioned 
therein. It is contended that such grant is in effect 
like a deed of bargain and sale, by which the bar- 
gainee can bring no action of trespass before entry; 
and, therefore, the patentee can bring no such action. 
There is no analogy in the cases, for the King's patent 
operates like a deed of feoffment with livery of seisin, 
and completely passes the estate, and the grantee is 
in actual possession by virtue of the patent — all the 
authorities are clear as to this point. The defendant in 
this case had no adverse possession, for the act of 
cutting down and carrying away the timber was an 
act of aggression only, without any claim to the pos- 
session or property of the land. There can be no 
occupancy or tenancy at sufferance against the King. 
Lit. 17S; 1 Institute, 41 b.; 1 Institute, 57. 

Per Curiam. — Application refused. 



Perkins v. Scott. 

The court refused to set aside an assessment of damages upon the ground 
that the verdict was too low from a misapprehension of the jury. 

George S. Boulton applied for a rule nisi to set 
aside the assessment of damages in this cause, the 
jury having given their verdict for too small a sum 
under a misapprehension. 

The court considered the case of Jackson and 
Williamson as deciding the present case, and refused 
the application, (a) 

Per Curiam. — Application refused, 

{a) 2 T. K. 281. * ~ 



406 MICHAELMAS TEEM, 7 GEO. IV., 1826. 

Batabd et al. y. Partridge. 

Accord ■with satisfiaction held a good plea to breach of covenant, and leave 
to withdraw the demurrer refused. 

Declaration ia covenant for non-payment of the 
purchase money of certain lands sold by the plaintiff 
to the defendant. 

Plea. — First, non est factum. 

Secondly. — Actio non, because the defendant, be- 
fore the commencement of this suit, to wit, on, &c., 
at, &c., conveyed and delivered back to the said 
plaintiffs, and into their hands and possession, the 
lands contracted for, in the full satisfaction and dis- 
charge of the sums of money in plaintiffs' breach 
mentioned and of the damages thereof, and which 
said lot of land so conveyed and delivered back to 
them, the said plaintiffs, they then and there received 
of and from the defendant, in full satisfaction and 
discharge of the said several sums of money in the 
said breaches mentioned, and of the damages, &c. 

The plaintiffs took issue upon the first plea, and 
demurred generally to the second. 

JBeihune, in support of the demurrer, contended, 
that a covenant to pay money cpuld not be discharged 
without deed, and cited the authorities below, (a) 

Robinson, Attorney-Greneral, contra, admitted that 
a covenant, not broken, could not be discharged 
without deed, but contended that the damages arising 
from a breach of covenant might be satisfied by pay- 
ment of money or any other thing ; and that the 

(a) 2 Institute, 212, b.; 6 Coke, 44 ; 2 Croke, 99 ; Croke, Eliz. 103, 357 ; 
Croke, James, 2^. 



MICHAELMAS TERM, 7 UEO. IV., 1826. 407 

agreement for such satisfaction might be by parol. 
That acceptance in satisfaction was a good plea; and 
that the above distinction was to be gathered from 
the cases he cited the authorities below, (a) 

The court were of opinion that accord, with satis- 
faction, was a good plea to breach of covenant, 

Judgment for the defendant. 

Boulton, Solicitor-Greneral, applied before judg- 
ment for leave to withdraw the demurrer, but was 
not allowed. 

Sherwood, J., observing, that the plaintiff, by his 
demurrer, had admitted the facts stated in the plea, 
and could not now be permitted to deny them. 



(ffi) 9 Coke, 79 ; 5 T. E. 141 ; Bac. Abr. Covt. 1 *Morgan, 149, 326 ; 3 
East, 252 ; 1 Saunders, 235. 



[408] 
HILARY TERM, 7 aEO. IV., 1827. 



Present : 

The Honourable Chief Justice Campbell. 
Mr. Justice Sherwood. 



MORAN V. MaLOT and ANOTHER. 

The court Trill not grant an insolvent debtor an order for the payment of 
the arrears of his weekly allowance, which had accrued pending an un- 
successful application for his discharge. 

Washburn applied for a rule to sliew cause why 
the defendant Maloy should not be discharged out of 
the custody of the sheriff of the Midland District, for 
non-payment to him of thirty shillings, currency, 
being six weeks' allowance due to him as an insol- 
vent debtor, which he had refused to receive pend- 
ing an application to this court for his discharge from 
prison under a misconstruction on the part of said 
defendant of the law respecting the weekly allowance 
of insolvent debtors, or why plaintiff should not pay 
defendant all arrearages of said weekly allowance. 

Sherwood, J., observed, that the defendant had 
made an experiment of which he must submit to the 
consequences. 

Per Curiam. — Application refused. 



hilaey term, 7 geo. iv., 1827. 409 

Stewart v. Crawford. 

The court will not, upon a first motion, grant a rule absolute for an attach- 
ment for non-performance of an award although the party consents by his 
counsel. 

Washburn moved for u rule nisi against the defen- 
dant for the non-performance of an award. 

Stewart, (with a view to save costs,) on the part of 
the defendant, proposed that the attachment should 
go in the first instance, but his proposal was rejected 
by the court. 

Application granted. 



Crooks v. Stockings. 

A party must furnish his opponent with copies of any affidavits which he 
intends to produce as the ground of discharging a rule nisi. 

Stewart was proceeding to answer a rule nisi in 
this cause and to produce affidavits which had not 
been communicated to the other party. 

Sherwood, J., observed, that the counsel intend- 
ing to file affidavits should furnish the opposite party 
with a copy the day before argument. 



Bebbe v. Secord and another. 

Counts in assumpsit cannot be joined in a declaration with counts in debt, 
and such misjoinder will not be cured by verdict. 

The declaration commenced in the usual form in 

debt, demanding the aggregate of the several sums 

contained in the different counts. The first count 

was in debt upon an obligation in the usual form. 

52 



410 HILARY TERM, 7 GEO. IV., 1827. 

The second count was in the form generally used in 
assumpsit, for goods sold and deliverefJ, money lent 
and advanced, paid, laid out, and expended, had and 
received, and concluded with the usual promise in 
assumpsit. 

The third count was for interest in the same form 
and with the same conclusion. 

The fourth, in like manner, upon an account stated; 
the breach alleged the non-payment of the £550 
above demanded, and concluded to plaintiff's damage 
of ten pounds. 

Plea to the first count, non est factum. To the 
others, nil debit — upon this declaration the parties 
went to trial, and there was a verdict for the plain- 
tiff. 

Boulton, Solicitor-Greneral, having obtained a rule 
nisi to arrest the judgment for misjoinder, 

Macaulay shewed cause. — He observed, that the 
criterion by which it was to be determined whether 
or not this judgment could stand was, whether there 
could be the same form of plea and the same judg- 
ment to these several counts. 

He contended that non est factum having been 
pleaded to the first count upon the specialty, and ml 
debit to the counts upon the simple contracts, (which 
might be considered as counts in debt,) that one judg- 
ment, namely, that the plaintiff recover his debt, 
would well apply to all the counts, and therefore 
would be good; he contended that the promise to pay 



HILARY TERM, 7 GEO. IV., 1827. 411 

at the end of the simple contract counts could not 
vitiate, it was merely expressing what would be 
othierwise implied, and that however bad the joining 
these counts might have been upon special demurrer, 
that the verdict must cure thein. The counsel re- 
ferred to the authorities below, (a) 

BoultOn, Sblicitor-Greneral, in reply, observed that 
the counts upon the sinifjle dorltracts Vere in the 
regular assumpsit form, whereas the first count was 
in debt, which forms could not, agreeably to the rules 
of pleading, be joined together.' The judgment upon 
the one count must be that the plaintiff recovei* his 
debt; upon the others that he recover his damages 
— different judgments altogether. 

That the greatest confusion would arise if stich in- 
accuracies could be tolerated by the courts; that the 
defendant having pleaded nil deUi to the assumpsit 
counts, the plaintiiff niight havfe entered a rioti prose- 
qui upon the count in debt and have signed judgment 
for want of a plea. 

The counsel cited the authority belbV. [b) 

Sherwood, J. — The court cannot pronounce the 
same judgment upon all the counts in this declara- 
tiod, some of the counts are in debt, and sOtne in as- 
suthpisit — the judgment must be arrested. 

Per Curiam. — Eule absolute. 



(a) 1 WilaQU, 258 ; 2 Wilson, 319 ; 1 T. R. 274 ; 1 H. B. 249 ; 1 B. & P 
58. (h) 6 Wilson, 321. 



412 HILAKY lERM, 7 GEOi lV.,"l827. 

Henderson v. McOormick. 

Where four terms have elapsed after issue joined, a term's notice is necessary 
to be given before any subsequent proceeding, unless irithin the four 
terms a notice of intention to proceed has been given. 

Notice of trial had been given in this cause, in the 
vacation of Trinity Term, 6 Geo. TV.; no further 
proceedings were had until last Trinity vacation, 
when fresh notice of trial was given, and a verdict 
taken for the plaintiff — the date of the last notice of 
trial was within a year of the date of the first. 

BouUon, Solicitor-G-eneral, had obtained a rule to 
shew cause why this verdict should not be set aside 
on the ground of irregularity. 

Macaulay shewed cause. — He suggested that pro- 
ceedings (namely, a notice of trial) having been had 
within a year from the last proceeding, made it un- 
necessary for the plaintiff to give a term's notice, it 
being laid down in Impey, (o) that if notice be given 
"within the year from the day of the last proceeding, 
having no regard to the terms, it is sufficient," which 
is also conformable to what is laid down in Eichards 
V. Harris, {b) 

Sherwood, J. — It is contended by the defendant, 
that four terms having elapsed since any proceedings 
have been had, he was entitled to a term's notice of 
trial. By the plaintiff, that the second notice of 
trial having been given within a year from the former, 
it is sufficient. 

Tidd lays down, that where there have been no 
proceedings for four terms, exclusive after issue 

(o) 359. (i) 3 East, 1. 



HILARY 1ESM, 7 GEO. IV., 1827. 413 

joined, a term's notice is requisite. Impey states the 
same in substance, but in a subsequent paragraph he 
says: " If notice be given within the year from the 
day of the last proceeding, having no regard to the 
terms, it is sufficient." I think that this seeming 
contradiction is reconciled by considering the latter 
paragraph in Impey, not as alluding to the whole 
term's notice, but to a notice of intention to proceed 
to be previously given within the four terms, and 
this is supported by the form of notice which we find 
in Tidd's appendix. 

I consider, from all the authorities, that it is the 
settled practice that if notice to proceed be given 
within the four terms, that an ordinary notice of trial 
will be sufficient, but that in the present case, no such 
notice having been given, and four terms having 
elapsed without any proceeding, the defendant was 
entitled to a term's notice. 

Per Curiam. — Rule absolute. 



Byard v. Read. 

The defendant had been held to bail by an affidavit 
which stated the deponent's residence as at Canan- 
daigua, state of New, (the word York being omitted,) 
and an order had been obtained for his discharge 
from arrest upon filing common bail, by an applica- 
tion to a judge at chambers. 

Beardley applied (a term having elapsed since the 
obtaining the judge's order) to rescind such order, 



414 HILARY TEEM, 7 GEO. IV., 1827. 

cdntending that the affidavit was sufficient, and that 
it was nbt eompetent to a judge at chainbers to order 
a discharge upon filing common bail. 

He urged that our provincial statute, which re- 
quired an affidavit of the defendant intending to 
leave the province without paying the plaintiff's debt, 
dispensed with the niceties required by the English 
practice. 

Washburn was for the plaintiff. — -The court observ- 
ing, that the description of the depoiient was insuffi- 
cient, and that an application to the court to discharge 
an order of a judge at chambers should be made at 
the next term after such order had been obtainisd. 

Per Curiam. — Applifcatibn refused. 



Laing v. Harvey and Powell. 

Bailable process issued against two, the plaintiff allowed to proceed against 

one. 

The plaintiff applied by Macaulay for leave to dis- 
continue his action as to defendant, Harvey, and to 
proceed against Powell alone, upon an affidavit stat- 
ing, " the plaintiff having issued bailable process 
under which the defendant Powell had been arrested, 
and that the other defendant, Harvey, had abscdnded 
from the province, and that if the plaintiff was not 
allowed to proceed against the defendant Powell 
alone, he would probably abscond." (a) 

The counsel considered that he was entitled to his 

(a) Vide 5 Dumford, East ; 4 East, 568 ; 1 M. & S. 55 ; 2 B. & P. 49 ; 
Lewin V. Smith ; 4 East, Tidd, 736, 421. 



HILARY TERM, 7 GEO. IV., 1827. 415 

application, by analogy, to the practice of inserting 
four defendants in a common process and declaiming 
in separate actions. 

And also under the equity of the provincial statute 
for proceeding against one or more joint debtors, 
where the others had left the province. 

Per Curiam. — Application granted. 



Butler, Executrix of Johnson Butlee, v. The 
Hon. J. H. Dunn, Ebcbivbr-G-eneral. 

The Receiyer-General of this province is not considered as liable to actions 
at the suit of individuals for money placed in his hands hy the executive 
to be distributed among them. 

This was an action for money had and received, 
brought against the defendant, for a sum awarded to 
the plaintiff's testator for losses sustained during the 
late war, under the provincial statute, {b) under the 
following circumstances: 

Andrew Butler and Johnson Butler (the latter 
being plaintiff's testator) had been awarded a con- 
siderable sum by the commissioners appointed under 
the above statute. 

From the difficulty which they experienced in as- 
certaining and apportioning the amount of the loss 
sustained by each of these individuals, the commis- 
sioners had awarded them an aggregate sum of £704, 
leaving it to the parties to appoint an attorney to re- 
ceive the whole amount and divide it according to 
their respective rights. 

" (a) 4 Geo. IV. 



416 HILARY TERM, 7 GEO. IV., 1827. 

The claimants were correctly named in the origi- 
nal award of the commissioners; but in the printed 
schedule or list of persons to whom sums were 
awarded, they were called " Andrew and John,-' in- 
stead of Johnson Butler. 

Johnson Butler died, and appointed the plaintiff his 
executrix. 

Shortly after the publication of the schedule, a Mr. 
William Crooks, by virtue of a power of attorney 
from the representative of Andrew Butler and the 
representative of John Butler, received the whole of 
the sum awarded by the commissioners, from the de- 
fendant, who paid it, as usual, upon reference to the 
printed schedule, without reference to the original 
document. 

Under these circumstances there was a verdict for 
the plaintiff for £219, subject to the opinion of the 
court upon several points reserved; the principal, 
and only one upon which it became necessary for the 
court to decide, being "whether the defendant was 
liable to this action as being a public officer." 

Macaulay, for the plaintiff, contended, that Mr. 
Dunn, by his laches in depending upon the printed 
schedule, and not going to the office of the commis- 
sioners or the government office, where he might, by 
reference to original documents, have ascertained 
who were the parties actually entitled, had subjected 
himself to pay this money a second time. This would, 
no doubt, be the case with private individuals, and 
he considered that his situation as a public officer, as 
far as regarded his liability in this case, made no 
alteration. 



HILARY TERM, 7 GEO. IV., 1827. 417 

He distinguished between cases which might be 
cited on the other side and the present, inasmuch as 
in those there was no specification, whereas in the 
present the particular sums having been appropriated 
by schedule to each individual, renders the defendant 
liable pro tanto to each person, and contended that 
the defendant's situation was more analogous to that 
of a paymaster who received sums appropriated to 
individuals, than to that of an officer who received 
large sums for general purposes. He cited Stewart 
V. Tucker (a) as shewing that the former description 
of officer was liable. 

He further observed, that Lord Mansfield's obser- 
vation in Burrow {b) would include the present case, 
viz., " That the gist of the action for money had and 
received is, that the defendant, upon the circumstan- 
ces of the case, is obliged by the laws of nature, jus- 
tice and equity to refund the money."' 

He observed further, that an application to the 
government, which might be pointed out as the plain- 
tiff's counsel, would probably be answered by a re- 
ference to the Receiver-General. 

Robimon, Attorney-G-eneral, contra, after premis- 
ing that the object of this defence was to ascertain 
whether Mr. Dunn was a public officer, liable to the 
actions of individuals in matters relating to the dis- 
position of the funds entrusted to his charge, con- 
tended, as a general position, that public officers were 
not so liable. 

That the case of the paymaster, cited from Black- 



(o) 2 W. B. 1137. (S) 1 Burrow, 1012. 

53 



418 HILAHY TERM, 7 GEO. IV., 1827. 

stone's reports, was professedly brought to ascertain 
whether an officer could assign his half pay, and it 
had been observed that the declaration in that case 
was ill drawn and the case confined. 

« 

The case of McBeath v. Haldimand (a) supported 
his gejieral position, and was considered as decisive 
in the subsequent case of Unwin v. Wolsley. {b) 

That the distinction attempted to be drawn be- 
ween moneys appropriated and unappropriated was 
done away by the case of Williams v. Everett, (c) 
In that case, although it was one of a private transac- 
tion, the court determined that although the defen- 
dant had received a gross sum, which had been re- 
mitted to him, with instructions to pay a certain part 
of it to the plaintiff, yet that an action for money had 
and received upon an implied assumpsit would not 
lie, and that the principle and reasoning, as laid down 
by Lord Ellenborough in that case, was not affected 
by the circumstance of the defendant's refusal to ap- 
ply the funds entrusted to him, agreeably to the 
direction of his principal. The question which natu- 
rally suggests itself in the present, as well as in the 
case cited, is that put by Lord Ellenborough — an 
locupletior f actus est. When did the sum claimed be- 
come money had and received to the use of plaintiff? 
If the defendant, in the present action, had been 
robbed of the whole sum entrusted to him, would 
every person named in the schedule have been en- 
titled to bring his action, and would each of them 
have lost his claim to any compensation elsewhere ? 

In the case before the court, as well as in the case 

(a) 1 T. R. 172. (6) 1 T. E. 674. (c) 14 East, 697. 



HILARY TERM, 7 GEO. IV., 1827. 419 

cited, the defendants might have been called upon at 
any time by the principal in the one instance, and 
by the government in the other, to have returned 
the money deposited. When, then, could the money 
so deposited, or any portion of it, have become money 
had and received to the defendant's use ? At what 
time could the law have raised an implied assumpsit ? 

The late case of G-idley, executor of Holland, v. 
Lord Palmerston, (a) he further observed, had placed 
this matter beyond doubt ; it being in that case de- 
termined " that assumpsit could not be maintained 
against the Secretary-at-War, by a retired clerk of 
the war office for his retired allowance, although 
such allowance was included in the yearly estimates 
drawn for by such secretary, and received by him as 
applicable to such specific allowance, upon the 
ground that it would tend to .expose him to an infi- 
nite number of actions to be brought by any person 
who might suppose himself aggrieved. 

Sherwood, J. — The plaintiff has a verdict subject 
to be set aside, and a nonsuit entered, should the de- 
termination of the court be in favour of the defen- 
dant on the points reserved at the trial, among which 
is the following: " the defendant acted in this tran- 
saction as a public officer of the government, and no 
action on an implied assumpsit lies against him by 
the plaintiff." The sum claimed by the plaintiff is 
£219 16s. 6d., being a part of a larger amount allowed 
to the plaintiff's testator for losses which he sustained 
during the late war with the United States of Ame- 
rica, a part of which has been placed in the hands of 
the defendant as the Eeceiver-General of this pro- 



420 HILAEY TERM, 7 GEO. IV., 1827. 

vince, for the purpose ot being paid over to the per- 
son legally entitled to receive it. 

The defendant, it appears, has paid the money, 
but it is asserted that he has paid it to a wrong per- 
son, and the plaintiff alleges, he has brought this ac- 
tion to recover it for the rightful owner. At the trial 
of the cause, I inclined to think the action would well 
lie against the defendant for money had and received 
to the plaintiff's use, but upon looking into authorities 
which I shall presently mention, I am fully convinced 
this action cannot be supported. The cases I allude 
to are Macbeath v. Haldimand, 1 T. R. 172; Unwin 
V. Wolsley, 1 T. R. 674, and Gridley, executor of 
Holland, v. Lord Palmerston, 3 Broderip and Bing- 
ham, 275, and although the circumstances of none of 
these cases are precisely analogous to the present 
case, still they fully establish in my opinion the doc- 
trine, that public policy will not allow an action to 
be brought like the present, against any person act- 
ing in the public character and situation of the de- 
fendant. 

The plaintiff" must also fail on another ground, which 
is the total absence of any implied promise. The 
money cannot be said to have been received to the 
use of the plaintiff, because it undoubtedly belonged 
to the Crown, and the defendant received it from the 
Crown in his public character of Receiver-G-eneral 
of Upper Canada, and in that capacity is responsible 
to the Crown only. The constitutional remedy of 
the plaintiff is by petition to the Crown, and conse- 
quently a nonsuit ought to be entered. 

Chief Justice. — The general rule seems to be 



HILARY TERM, 7 GEO. IV., 1827. 421 

that where a public officer has a trust or discretionary- 
power reposed in him, although he may err in its 
execution, unless he does so wilfully he is not liable 
to an action at the suit of an individual. Further, 
that if his duty is purely ministerial, his situation is 
analogous to that of a paymaster of a regiment, and 
be is not protected by the general principle of law, 
contended for by the defendant's counsel. Upon con- 
sidering the general circumstances of this case, I am 
of opinion that the defendant's situation is more analo- 
gous to that of Lord Palmerston, than to that re- 
ported in Blackstone, and that this action therefore 
does not lie. 

Per Curiam. — A nonsuit to be entered. 



Taylor v. Eawson. 

Where a declaration upon common process was endorsed, " filed condition- 
ally until special bail, &c.," the court refused to set aside the proceedings 
as irregular. 

In this case a bailable process had been issued 
against the defendant, but those proceedings had been 
discontinued and a common process issued and served 
— appearance was entered according to the statute, 
and a declaration was filed, but was endorsed to 
plead de bene esse until special bail was put in and 
perfected; a copy had been served upon the defen- 
dant and a demand of plea given; judgment was 
afterwards signed for want of plea. It did not appear 
how the copy of the declaration was endorsed. 

Boukon, Solicitor-General, moved last term for a 
rule nisi to set aside the interlocutory judgment and 
proceedings thereon for irregularity — the declaration 



422 HILARY TEEM, 7 GEO. IV., 1827. 

having been improperly endorsed, and such endorse- 
ment having tended to deceive the defendant, who 
might reasonably have supposed that the declaration 
was a continuation of the bailable proceeding. 

Macaulay shewed cause, he assumed (as it did not 
appear otherwise) that the copy of the declaration 
served had not been endorsed, and, therefore, could 
not have deceived the defendant; and that the demand 
of plea having been served, either with or after the 
declaration, left no room for doubt. 

He cited Cort v. Jaques, in which case the service 
of a notice of declaration, as filed generally, instead 
of the notice de bene esse, was held not to be such an 
irregularity as would set aside a judgment, {a) and 
the other authorities below, {b) 

Chief Justice. — If this endorsement upon the 
declaration had actually deceived the defendant, 
there would have been a strong ground for setting 
these proceedings aside; but the court consider that 
a demand of plea having been also served, left the 
defendant no room for doubt. 

Per Curiam. — Eule discharged. 



McPhbrson v. Sutherland. 

Macaulay applied for a rule nisi to stay proceed- 
ings upon an execution against goods and chattels 
taken out under a cognovit actionem, and judgment 
thereon entered, upon an afl&davit setting out a ver- 

(fl) 8 T. R. 77. (b) Impey 182 ; Sellen 222. 



HILARY TERM, 7 GEO. IV., 1827. 423 

bal agreement at the time of the cognovit given, that 
the plaintiff would resort only to the lands of the de- 
fendant's testator for payment of his debt. 

The court observing, that the defendant must re- 
sort to an action upon the agreement, if so advised, 
as they could not interfere summarily, 

Refused the application. 



Sbwbll v. Richmond, (Bxoes. of.) 

Where, in an action for goods sold, the defence to which was that the goods 
were intended to be smuggled, it was doubtful (the verdict being general) 
whether the jury understood that the plaintiff knew that the goods were 
contraband. The court granted a new trial. 

This was an action tried at the assizes for the Mid- 
land District, and a verdict for the plaintiff. The 
defence set up was that the articles sold to the defen- 
dant were contraband. 

The defendant's testator had resided at Kingston, 
and by letter directed to the plaintiff at New York, 
desired him to forward to Gravelly Point, a small 
village on the Saint Lawrence, opposite tp Kingston, 
sixty chests of tea. 

The tea was put on board a vessel at New York, 
packed in chests unusually small, having upon them 
not the name of Richmond, but the mark R. C, such 
not being the ordinary mark of either Richmond or 
the plaintiff, and directed to a forwarder at Gravelly 
Point. 

Robinson, Attorney-General, had obtained a rule 



424 HILAKY TERM, 7 GEO. lY., 1827. 

nisi to set aside the verdict, and grant a new trial on 
the ground of its being contrary to law and evidence, 
and now by consent and leave of the court argued 
first in support of the rule, it having been granted 
without argument. 

He acknowledged that the case of Holman v. John- 
son seemed against this application, as Lord Mans- 
field had there considered that mere knowledge that 
goods were intended to be smuggled would not pre- 
clude a plaintiff from recovering their value in the 
English courts, but that it was to be observed upon 
that case, that the contract was made and perfected 
in the foreign country, in the ordinary course of busi- 
ness, without any assistance given by the plaintiff in 
furtherance of the smuggling, but that in the present 
case the contract must be considered as made at 
Kingston, as much as in J;he United States. 

He admitted that this case was not easily recon- 
ciled to the later decisions, which went more upon 
the ground of public policy, a ground which, he urged, 
was much to be considered in this province, where a 
very extensive frontier offered innumerable points 
for carrying on contraband trade. 

He contended that in the later cases knowledge 
in a plaintiff (evident and indubitable) that the goods 
were intended to be smuggled, accompanied by any 
act in furtherance of the illegal transaction, would 
preclude his recovering their value in the courts of 
this country. He cited Biggs v. Lawrance {a) in 
support of this position, observing that the packing 

(a) 3 T. E. 454. ' 



HILARY TEEM flEO. IV., 1827. 426 

the tea in an unusual manner in the present case, 
was analogous to the mode of furnishing the brandy 
in small kegs with the slings in the case cited. That 
although in that case the circumstance of the plain- 
tiffs being British subjects seems to have been re- 
lied upon, yet the later case of Weymall v. Eead, (a) 
went to shew that foreign merchants are bound to 
recognise the smuggling laws, and with the greatest 
propriety, as being made in reference to matters in 
which they are especially concerned. He considered 
that case as parallel to the present. There the for- 
eigner packed his lace in a peculiar manner to pre- 
vent discovery; in this case he packed and marked 
the tea in a peculiar manner, and forwarded it to a 
place where it could not be supposed,with any shadow 
of reason, to be consumed in any other manner than 
in a contraband trade. 

He contended further, that the doctrine of partici- 
pation, as laid down by Lord Chief Justice Eyre, in 
the case of Lightfoot v. Tenant, {b) should be applied 
to cases of this sort, for that parties who knew that 
the transaction which they were engaged in was illi- 
cit, would indemnify themselves for the risk which 
they sustained by charging an extraordinary price 
for the article furnished, and so might be considered 
as partners in the transaction. The Attorney-Gen- 
eral also cited the case of Laughton v. Hughes, (c) 
as not only shewing that the scienter was to be ascer- 
tained from circumstances without direct evidence, 
but also as establishing that the general policy of law 
required that vendors should not recover for goods 
to be employed in an illicit manner, insisting that 

(a) 5 X. R. 599. (i) 1 B. & P. 651. (c) 1 M. & S. 592. 

54 



426 HILARY TERM, 7 GEO. IV., 1827. 

the plaintiff in this case had, as observed by Lord 
Ellenborough in the case cited, contributed quantum 
in lib to the illegal transaction, and also as it recog- 
nised the cases of Biggs and Lawrence, and Wey- 
mell V. Read. He concluded by observing, that as 
there could be no possible doubt from the facts in the 
present case that the plaintiff knew the nature of the 
transaction he was engaged in, and had also assisted 
in the furtherance of it, that he could not recover in 
the action. 

Macaulay, contra, contended, that the cases cited 
were those in which British subjects having engaged 
in smuggling transactions against those laws which 
they were bound to recognise, were precluded from 
recovering, and that their being British subjects was 
the express ground of the decisions in the latter 
cases. That in the present case, as in that of Holman 
v. Johnson, the transaction was completed at New 
York, and that if that case was law, a decision against 
the plaintiff in the one before the court would be to 
legislate, and not to expound the law. 

That no sufficient argument in favour of the pre- 
sent application could be drawn from motives of 
public policy; which he considered as leaning the 
other way, for to decide against the present plaintiff 
would be to interdict foreign trade. 

No foreign merchant would trust the inhabitants 
of this country with his property, if defences like the 
present were to be set up to prevent his recovering 
their value. 

That such defences were highly immoral and should 



HILARY TEEM, 7 GEO. IV., 1827. 427 

not be sanctioned, unless in cases where the imperi- 
ous and plain demands of public policy required it, 
which in the present case was more than counter- 
balanced by the injury which foreign credit would 
sustain by a decision in favour of the defendant. 

The counsel cited Vandyke and others v. Hewett, 
(a) and Johnson and others v. Hudson, (b) 

The Chief Justice observed, that as it could not 
be inferred from the general verdict given in this 
case, whether the jury considered the scienter as 
proved or not, that he considered (without going into 
the merits of the case) that it was a proper one to 
be submited again to a jury. 

Per Curiam. — Rule absolute. 



Applegarth v. Rhtmal. 

Case for diverting a water-courtt. 

An injury to a water-course considered as an injury to a permanent right, and 
in such case the court will grant the plaintiff a new trial, although the 
probable amount to be recovered by a verdict may not be large. 

This was an action tried at the assizes for the Gore 
District, and a verdict for the defendant. 

It appeared in evidence that the plaintiff had, for 
many years, occupied a mill upon the stream in ques- 
tion. 

That the defendant had recently erected another 
mill upon the same stream, about five miles above 
the mill of the plaintiff. 

(a) 1 East, 95. (ij U East, 180. 



42S HILARY TERM, 7 GEO. IV., 1827. 

That during the time which the defendant occasion- 
ally took to fill his pond, the water of the stream 
ceased to flow in its usual quantity or velocity to the 
mill of the plaintiff, whereby his works were not only 
occasionally stopped, but when the defendant let his 
water off, it flowed in such a quantity as to overflow 
and injure the plaintiff's dam, by carrying away the 
brush, soil, gravel, &c., of which it was composed. 

The testimony given, as to the damage sustained, 
was very discrepant, the witnesses of the plaintiff 
(who were his servants, or persons resident at or in 
the immediate neighbourhood of the mill) estimating 
it at upwards of twenty-five poundscurrency,whereas 
the witnesses of the defendant (who were persons 
living at a distance from the mill) stated that he could 
have received very little or no injury. 

The judge who tried the cause charged the jury in 
favour of the plaintiff, who, however, found a verdict 
for the defendant. 

Taylor having obtained a rule nisi to set aside the 
verdict, on the ground of its being contrary to law 
and evidence, and the judge's charge. 

Robinson, Attorney-G-eneral, shewed cause. — He 
insisted that the action being for a tort, the damages 
in which (assuming for argument that there could 
have been a verdict for the plaintiff) must have been 
very small, the court would not interfere for the 
sake of giving the plaintiff a chance of recovering a 
verdict which, in all probability, could not exceed £5. 

That the judge having explained the law to the 



HILARY TERM, 7 GEO. IV., 1827. 429 

jury, and having charged them in the plaintiff's favour, 
his duty was finished and satisfied, and that it would 
be unreasonable that the defendant should be har- 
rassed with a second trial because the judge differed 
in opinion with the jury as to the preponderance of 
conflicting testimony, to weigh which is the peculiar 
province of the jury, and more especially so in cases 
of tort. 

That the present was a hard action, tending to 
establish an unfair monopoly; that the amount of the 
injury was trifling — circumstances which would deter- 
mine the court in refusing this application, according 
to the authorities to be found in Wilson's and other 
reports. 

Taylor, in reply, contended that the position "that 
the court will not grant new trials on the ground of 
verdicts being contrary to evidence, where there is 
conflicting testimony," should reasonably be re- 
strained in its application to those cases where there 
is something like an equality in the conflicting testi- 
mony, and could not be extended to cases like the 
present, where the evidence on one side was as a 
feather compared to that on the other, where there 
could be no reasonable doubt upon the fact of the in- 
jury, and where the jury must have acted either from 
their own misconceived notions of the law or from a 
wrong bias. 

That the negative testimony of the defendant's 
witnesses should have had little weight when opposed 
to the positive testimony of the plaintiffs, who were 
persons qualified to judge of the injury and its extent, 



430 HILAKY TEEM, 7 GEO. IV., 1827. 

and who had computed the amount of the damage 
sustained by the plaintiff in consequence of it. 

That the present case bore more analogy to an ac- 
tion for the infringement of a permanent right, where 
courts grant new trials, although the amount of the 
immediate pecuniary injury may be trifling, than to 
cases of tort which had been referred to by the de- 
fendant's counsel. In the latter there was no scale 
by which the amount of the injury could be ascer- 
tained, but in the present case the damage could be 
and had been computed. 

That it was matter of serious consideration, in cases 
like the present, that it was necessary that plaintiffs 
should resist any infringement of their right at once, 
and not by laches and length of time to give an op- 
portunity to a defendant to justify that as a right, 
which commenced in aggression. 

Sherwood, J., delivering the opinion of the court. 
— This is an action for obstructing a stream of water. 
The plaintiff is owner of the lands on both banks of 
the stream, and erected a mill and a dam on his own 
premises. Many years afterwards the defendant 
also built a mill and a dam further up the same 
stream, in consequence of which the water of the 
river was sometimes kept back when wanted by the 
plaintiff, and at others was allowed to come down in 
a much larger quantity than necessary, and with 
greater impetuosity than it naturally flowed. It was 
proved at the trial that both these changes in the 
ordinary progress of the stream occasioned injury 
to the plaintiff. 



HILAKT TEEM, 7 GEO. IV., 1827. 431 

On the part of the defendant several witnesses 
gave their opinion that the plaintiff sustained no 
damage, others thought it very small. The witnesses 
for the plaintiff spoke of facts which, if true, estab- 
lished beyond a doubt that the plaintiff had been in- 
jured, and the witnesses for the defendant did not 
contradict those facts, but merely expressed their 
opinion of the absence of damage. The credibility 
of the witnesses on both sides was not impeached, 
beyond what a difference of opinion relative to the 
question of damage might possibly occasion. 

The course which the argument took on the motion 
for a new trial suggests three questions in this case: 

First. — Whether the prior occupancy of the water 
by the plaintiff gave him a right to the uninterrupted 
flow of the stream. 

Secondly. — Whether the smallness of the apparent 
damages, in a case like this, should prevent a new 
trial. 

Thirdly. — Whether this is a case of that descrip- 
tion in which the court generally consider a verdict 
of a jury conclusive. 

As to the first question, the common law rule is 
that a prior occupancy does give a right and pro- 
perty in a current of water to the first occupant, and 
every subsequent occupant must exercise his right 
so as not to injure the first occupant. — 2 Black. Com. 
403. 

As to the second question, I know of no case 



432 HILARY TEEM, 7 GEO. IV., 1827. 

which ever established the position that a small in- 
jury is entitled to no remedy, where the injury itself 
is of such a nature as to induce a probability of a 
continuance which would ultimately establish a right 
in the wrong doer. Great injury and small injury 
are relative terms, and depend on opinion, and in a 
case like this are too indefinite to aflford any perma- 
nent and rational rule, by which a candid mind can 
be governed in a question of right. It appears to me 
that the present action is similar in principle to an 
action on the case by a commoner in England, for an 
injury done to his right of common. In the case, 
Pindar v. Wadsworth, 2 East, 153, the court deter- 
mined that one farthing was sufficient to warrant the 
plaintiff in bringing his action, where the encroach- 
ment of a wrong doer, if not prevented in time, 
would change wrong into right. Twenty years' unin- 
terrupted possession and occupation of the water in 
any way, would give a right to the defendant in this 
case. The jury at the trial of this cause most pro- 
bably found a verdict for the defendant upon the 
erroneous opinion that the defendant, owning lands 
on the banks of the river further up tlie stream, had 
as good a right to use the water in any way as if the 
plaintiff had no previous occupancy. 

As to the' third question, this case differs essenti- 
ally from actions of adultery, slander, seduction and 
other actions of the same kind, where the quantum 
of damages must always depend in a great degree on 
sentiment, opinion and feeling, and which may be 
considered as actions sui generis. A measure of 
damages ascertained by ordinary computation is 
afforded by the circumstances of this case. Any man 



HILARY TERM, 7 GEO. IV., 1827. 433 

of common sense who worked in the saw mill for 
two or three years, as one of the witnesses did, could 
say whether the water was or was tiot detained 
sometimes, and at other times let down in excessive 
quantity, and what difference there was in the quan- 
tity of lumber sawed in the mill in different seasons. 
All these facts were proved at the trial. In general 
cases the opinion of juries have been revised in 
England for a great length of time, when the court 
were convinced that justice required their interfer- 
ence ; I do not think this case an exception from the 
general rule, and therefore think the plaintiff entitled 
to a new trial. 

Rule absolute. 



MoNair v. Sheldon. 

A venue is not changed by a judge's order and servios alone, and a defend- 
ant will not be entitled to judgment as in case of a nonsuit upon the 
ground that the plaintiff did not go to trial in pursuance of notice 
grounded upon such order. 

In this case the venue had been originally laid in 
Niagara, but had been upon defendant's application 
changed to Gore by order of a judge in vacation. 
This order had been served upon the plaintiff, but 
no rule of court was taken out upon it. Notice of 
trial had been given for the Gore assizes, but the 
judge's order having been lost, the district deputy 
clerk of the crown had refused to pass the record. 

Macaulay had obtained a rule nisi for judgment as 
in case of a nonsuit, for not going to trial pursuant 
to notice. 

Baldwin, shewing cause, contended that the venue 
not having been changed by rule issued upon the 
55 



434 HILAEY TERM, 7 GEO. IV., 1827. 

judge's order, the venue must be considered as still 
remaining at Niagara, and that the notice for G-ore 
being nugatory, could not be the ground of a motion. 

Macaulay, in reply, contended that the defendant 
had done what was necessary in serving the judge's 
order, and that if the plaintiff was interested, in a 
further proceeding being had, he should have at- 
tended to it. 

Shbewood, J. — The question is whether the mere 
service of the order was a change of the venue. It 
appears to me that you should have gone further and 
taken the order to the office, or, as in England, taken 
out a rule, and therefore, the venue not being chang- 
ed, it remains where it was at Niagara and not in 
G-ore, and no notice having been given for that dis- 
trict, there can be no judgment as in case of a non- 
suit. 

Per Curiam. — Rule discharged. 



G-AVAN V. Lyon. 

At the return of a rule nisi the party who has obtained the rule cannot pro- 
duce affidavits containing new matter. 

Upon the return of the rule nisi in this cause, the 
plaintiff offered to produce fresh affidavits to contra- 
dict the matters sworn to by the defendant in oppo- 
sition to plaintiff's original affidavits. 

Sed per Curiam. — An affidavit in answer to the 
affidavits filed against the rule nisi, and containing 
new matter, cannot be read. 



hilary teem, 7 geo. iv., 1827. 435 

Flint v. Sp afford. 

Parties cannot, by consent, dispense ■with the ordinary proceedings of the 

court. 

This was a motion for a new trial — pending the 
argument, the Clerk of the Crown and Pleas observed 
to the court, that the parties had gone to trial by 
consent without passing the record oi nisi prius. 

The court observed, that such conduct was a great 
presumption, and directed the verdict to be set aside 
without further argument. 



Fortune v. McCot. 

A notice of assessment will not be considered as a notice of trial. 

In this case the plaintiff had given a notice of as- 
sessment instead of a notice of trial, and had taken a 
verdict without defence. 

Macaulay moved to set aside the verdict. 

Shbrwood, J. — It appears to me that the question 
is reduced to this, — will a notice of assessment, with- 
out consent, operate as a notice of trial ? I think not, 
and that as there was no consent here the verdict 
must be set aside. 

Per Curiam. — Application granted. 



436 HILARY TERM, 7 GEO. IV., 1827. 

HILARY TERM, 7 GEORGE IV. 

GENERAL EULBS. 

13th. — It is ordered that from and after the last 
day of this term, all demurrer books shall be made 
up with marginal notes opposite the different counts, 
and other parts of the pleadings, briefly stating the 
substance of each part, and when so completed shall be 
delivered to the judges by the party applying for a 
consilium before his motion paper is filed. 

14th. — In future no cause shall be tried at the as- 
sizes for any district, unless the record of nisi prius 
is delivered on the commissioa day, or first day of 
the court to the marshal, who is hereby authorised to 
receive for the entering or withdrawing of the same, 
five shillings and six pence, 

15th. — That from and after the last day of this 
term, when any point or points are reserved at nisi 
prius on the trial of any action, paper books contain- 
ing accurate transcripts of all the pleadings in the 
suit, and of the point or points reserved, shall be 
made up and delivered to the "judge, by the party 
who applied to the court for a consilium to argue 
such point or points, or makes any other motion 
respecting them, and that no such motion shall be 
made till the proper books be delivered. 



EASTER TERM, 8 GEO. lY., ^827. 



' Present : 



The Honotjeablb Chief Justice Campbell. 
Mr. Justice Sherwood. 



Shuck v. Cranston. 



The court refused to consider the service of an order for payment of an in- 
solvent debtor's weekly allowance, under the 2nd Geo. IV., as a service 
under the late statute, 7th Geo. IV. 

The provincial statute 2d G-eo. IV., c. 8, s. 3, en- 
acts that in default of payment of the sum of five 
shillings weekly allowance, pursuant to any rule or 
rules of court under the provision of an act passed in 
the 54th year of his late Majesty's reign, entitled, 
" an act for the relief of insolvent debtors," the first 
payment of which said sum of five shillings is there- 
by declared to become due and payable on Monday 
next, after the service of such rule on the plaintiff or 
his attorney within the district where such defendant 
shall be imprisoned, the prisoner, upon application 
to the said court from which such execution issued, 
in term time, or a judge thereof in vacation, shall, by 
order of the said court or judge, be discharged out of 
custody, &c. 

Under this statute the defendant had obtained an 
order for the weekly allowance of 6s., but could not 
serve the same upon the plaintiff or his attorney in 
the district where he was confined, neither of them 
being resident there. 



438 EASTER TERM, 8 GEO. IV., 1827. 

By the statute 7th Geo. III., which passed subse- 
quent to the defendant obtaining his order, the above 
clause is repealed, and it is enacted, that the insol- 
vent debtor is to be discharged on the third Monday 
after the service of his order upon the plaintiff or his 
attorney, (dispensing with the necessity of the order 
being served within the district where the insolvent 
is confined.) 

Robert Baldwin applied to the court for the defen- 
dant's discharge, the order of court which the defen- 
dant had obtained under the old statute having been 
served upon plaintiff's attorney, and the third Mon- 
day having elapsed since such service without pay- 
ment of the weekly allowance. 

The court considered that the new statute had no 
retrospect to orders obtained under the old one, and 
that proceedings under the two statutes could not be 
joined, and the proper mode of proceeding was to 
take out and serve a rule on the attorney, conforma- 
bly to the proceedings of the new law. 

Per Curiam. — Application refused. 



Dascomb v. Hbacooks. 

The court refused to discharge a defendant upon filing common hail on the 
ground of his person having been discharged from arrest by an insolvent 
law of New York. 

Robert Baldwin moved for a rule nisi to discharge 
the defendant from custody upon filing common bail, 
upon an affidavit deposing that his person had been 
discharged from arrest by an insolvent law of the 
state of New York. 



EASTER TEEM, 8 GEO. IV., 1827. 439 

The court observed that it would not discharge the 
defendant upon a summary application, and recom- 
mended him to plead the fact if so advised. 

Per Curiam. — Application refused. 



Whelan v. Stevens. 

A person hiring himself to ■work with his own team of oxen is not an object 
of the British statutes for punishing labourers deserting their service. 

This was an action tried at the assizes for the 
Bathurst District, and a verdict for the plaintiff. 

It was brought against the defendant, as a justice 
of the peace, for convicting and imprisoning the plain- 
tiff under the Statute of Labourers, {a) 

The plaintiff had been hired by one Wetherley to 
work with his oxen for a month, and having quitted 
his service before the time had expired, he had, upon 
Wetherley's complaint, been convicted and sent to 
gaol. The verdict was subject to the opinion of the 
court, whether the defendant was a labourer intend- 
ed by the statutes. 

Boulton had obtained a rule nisi to set aside the 
verdict and enter a nonsuit. 

Macaulay shewed cause, he contended that the 
plaintiffs case was within the mischief of the statute. 
That he contracted with Wetherley as an husband- 
man to labour upon the land, one particular class of 
labourers pointed out by the statute, persons whose 
regular employment in their occupations was essen- 
tial to the well-being of society. 

(a) 20 Geo. 2, c. 19. 31 Geo. 2, c. 11. 6 Geo. 3, c. 25. 



440 EASTER TEEM, 8 GEO. IV., 1827. 

That the being employed with oxen should make 
no difference, that being the usual mode of employ- 
ment in this country. He cited the case of Lowther 
V. Eadner {a) as shewing that a labourer whose ex- 
ertions were confined to his own person, was not the 
only one contemplated by the statute. The com- 
plainant, one Soph, having in that case contracted 
for a piece of work, and employed another person 
under himself to assist in its completion, a case to 
the full as little embraced by the words of the statute 
as the present. 

The court being of opinion that the plaintiff in this 
case was not such a labourer as is contemplated by 
the statutes. 

Per Curiam. — Rule discharged. 



Briggs v. Spilsbtjrt, J. P. 

A conviction bad upon the face of it although not quashed, held not to be 
sufficient defence to an action of trespass. 

In this case the defendant, a justice of peace, had 
convicted the plaintiff under the statute of labourers, 
for leaving his employment before its expiration, and 
had sentenced him to three months' imprisonment 
and correction. 

An action had been commenced and referred to 
arbitrators, who found in favour of the plaintiff. 

The case came before the court upon a motion to 
set aside the award as being against law, with a view 
to obtain the decision of the court upon the following 
points : 

(a) 8 East 113. 



EASTER TERM, 8 GEO. IV., 1827. 441 

First. — "Whether the conviction was bad, as not 
stating that the witnesses were examined in presence 
of the plaintiff (the party accused.) 

Secondly. — Whether, as being a subsisting convic- 
tion, (not quashed,) it did not protect the defendant 
in an action of traspass and false imprisonment. 

Boulton, for the defendant, had obtained the rule 
nisi. 

Macaulay was for the plaintiff. 

The court referring to the cases of the King and 
Crowther, {a) the King v. Vipont and others, {b) 
and the other authorities below, determined the con- 
viction to be irregular, and that, as it appeared to be 
so upon the face of it, it could not be considered as 
protecting the defendant against the present action. 

Per Curiam. — Eule discharged. 



Jones v. Scofield. 

Impertinent matter in a return to a writ, considered as a contempt in the 

sheriff. 

As a return to a writ of capias ad satisfaciendum 
against the defendant, the sheriff of the District of 
London, by a paper appended to the writ, made tlie 
following return, upbn'being ruled, "by virtue of the 
annexed writ of ca sa.'^ I arrested the body of the 
said Joa Scofield, as therein I am commanded, whom 
I have since released upon giving satisfactory secu- 

(fl) 1 T. E. 125^; 2 Burr. 1163. (6) 5 M. & S. 614 ; 1 Brod. & Bing. 432. 
56 



442 EASTER TERM, 8 GEO. IV., 1821 ' 

rity to satisfy the said writ, and with which arrange- 
ment the said Jonas Jones, of Brockville, attorney- 
at-law for the said 0. Jones, has acquiesed. 

Boulton, Solicitor-G-eneral, moved for an attach- 
ment against the sheriff upon this return. 

The court being of opinion that the surplusage was 
a contempt of the court. 

Per Curiam. — Application granted. 



McCoLLUM V. Jones. 

Evidence of a verbal agreement to allow land to be set off against the 
amount of a note, held not to be admissible. 

This was an action brought upon a promissory note 
und for goods sold, tried at the assizes for the Johns- 
town District, and a verdict for the plaintiff. The 
defendant offered evidence of a verbal agreement 
entered into sometime after the date of the note, be- 
tween himself and the plaintiff, for the purchase of a 
lot of land, whereby it was agreed that the amount 
of the note, together with a quantity of wheat at 
various times delivered by plaintiff to defendant, and 
the value of which formed part of the subject of the 
present action, should be set off against the price of 
the land, and of which land the plaintiff had taken 
possession. The judge who tried the cause refused 
to admit this evidence, as contrary to the Statute of 
Frauds. 

Boulton, Solicitor-General, had obtained a rule 
nisi to set aside the verdict and grant a new trial. 



EASTER TERM, 8 GEO. IV., 1827. 443 

He contended that the plaintiff having taken posses- 
sion of the land, was a sufficient part performance of 
the agreement to take the case out of the statute, and 
that therefore the evidence should have been ad- 
mitted. 

Macaulay shewed cause. He contended, that to 
give this contract respecting land in evidence would 
be a direct violation of the Statute of Frauds. For 
that to shew the note was satisfied by the contract, 
the whole agreement must be gone into, an agree- 
ment respecting the sale of an interest in land, which 
is directly prohibited by the first section of the 
statute. That although such agreements partly per- 
formed can be enforced in courts of equity, they 
cannot be considered as considerations at common 
law. 

That if the defendant had pleaded this contract in 
bar, he must have stated the contract to be in writ- 
ing, or his plea would have been set aside upon de- 
murrer. 

That the cases in equity which decree a delivery 
of possession to be a sufficient part performance to 
take them out of the statute, or where the decrees 
are in favour of the parties who have been let into 
possession, who would suffer inconvenience by being 
dispossessed, but in this case the application is from 
a party altogether differently situated, namely, the 
defendant in this action, who cannot be injured by 
the plaintiff's possession, which he can put an end to 
whenever he pleases, and also recover for the mesne 
profits. 



444 EASTER TERM, 8 GEO. IV., 1827. 

Farther, that there having been no part perform- 
ance, it was competent to the plaintiff to discharge 
it by parol, as laid down in the case of Crosby v. 
Wadsworth ; (a) which he had in fact done by re- 
fusing to accede to it. 

The counsel cited the case of Walker v. Consta- 
ble (b) as a strong case to shew the necessity of a 
contract respecting lands being made in writing, ob- 
serving that in that case the plaintiff could not re- 
cover the purchase money paid for an estate, with- 
out shewing an agreement for the purchase in writ- 
ing, although both parties had agreed that the con- 
tract should be abandoned, and he observed in order 
to apply this case to the present, that in the case 
before the court a contract in writing should be 
shewn to enable the defendant to set off the price of 
the land against his note. Farther, that the note 
itself could not be avoided by a parol agreement- 
He also cited the case of Moggridge v. Jones, as 
shewing indisputably that the defendant in this ac- 
tion could not set up a non-executed agreement for 
the sale of land, which was the alleged consideration 
of this note, in answer to an action upon it. 

That as the plaintiff could not by his asserted 
possession bring an action for the deed, so neither 
could the defendant resist the payment of his note, 
for if he could this absurdity would follow, that he 
might refuse paying either the note or the amount 
of the wheat, and nevertheless turn the plaintiff out 
of possession by ejectment, who could not set up a 

(a) 1 Boss, and Pull,, 306. (6) 14 East, 485, 



EASTER TEEM, 8 GEO. IV., 1827. 445 

parol contract as a title, but that if the court refused 
this application, the plaintiff would get the amount 
of his note and wheat, and Jones, the defendant, 
would get his farm. 

That if Jones, the defendant, could bring any ac- 
tion for the amount of his purchase money, it must 
be a special action, to which a recovery by the 
plaintiff in this suit would be no bar. 

He further noticed, that none of the recepts given 
for the several quantities of wheat purported that it 
was to be taken in payment of land, which shewed 
that in point of fact that might not have been the 
case. 

Boulton, Solicitor-General, contra, admitted the 
principles advanced by the opposite counsel, but 
contended that they did not apply to the case before 
the court ; that the counsel had not distinguished be- 
tween a suit to compel the performance of what was 
undone, and one , to undo what had already taken 
place, which was the present case, in which McOol- 
lum had resorted to the Statute of Frauds to assist 
him in committing a fraud. 

He observed, that there were general loose ideas 
afloat that all agreements where land is the object 
are void if not put into writing, but that the statute 
does not render such agreements altogether void, 
but reduced the estates thereby contracted for to 
estates at will only. 

That in the present case if the plaintiff is not com- 
pellable to perform his contract, he should at least 



446 EASTER TERM, 8 GEO. IV., 1827. 

be the sufferer in the same manner as where a pur- 
chaser has paid the auction duty or purchase money, 
it has been decreed no fraud in the vendor to keep 
it, but a loss to himself which he must sustain. But 
there is no case in which a vendee can recover back 
his purchase money, if a vendor is able and willing 
to complete his contract. The counsel also referred 
to the Earl of Aylesford's case, as shewing the futility 
of setting up defences under the statute where part 
performance (which he insisted was the present case) 
took the case out of the statute. 

He observed, that the distinctions made between 
the powers of courts of law and equity were often 
nugatory, except so far as related to compelling a 
specific performance. That more than half the suits 
which were entertained in equity might be tried at 
law. 

The counsel cited Knowels v. Michel as in point, 
it being there determined that although an agreement 
might, in its inception, require a note in writing, yet 
that if its consideration had been in any manner 
liquidated, the amount ascertained became the sub- 
ject of an action of assumpsit, {a) 

That it was clear that Mr. Jones could bring an 
action for the remainder of the purchase money upon 
tendering a deed; but that was not his object, he de- 
fended this suit in order to prevent the vendee from 
recovering back the deposit on his purchase money. 

That as to plaintiffs having or not having a remedy 
to compel a deed which had been considered as im- 

(a) 13 East, 248, 



EASTER TERM, 8 GEO. IV., 1827. 447 

portant to be delivered, the court would not look to 
that in a case where the vendor had always been 
ready to complete the purchase. 

The counsel asked if the plaintiff had committed 
waste, would the court allow him to turn round and 
recover back his purchase money. 

That this being an action of assumpsit, the jury 
should have had all the facts before them, and even 
if evidence respecting the liquidation of the note 
could have been excluded (the defendant not having 
the note to produce) it was quite unreasonable to 
exclude evidence of the receipt of the wheat, and of 
the purpose for which it was received. 

That the transaction might have been specially 
pleaded, and such plea would have been good, which 
the counsel indeed in part admitted, and that if it 
could have been pleaded it might, in the equitable 
action upon an assumpsit, be given in evidence. 

He concluded by observing, that the evidence 
offered should have been received on two grounds : 

First. — Inasmuch as the facts offered in evidence 
were a part performance of the agreement. 

Secondly.— That the jury might have had it in 
their power to lessen the damages. 

Chief Justice. — I consider that this case is within 
the statute, and, therefore, that the evidence was 
properly rejected. Nor was there indeed any evi- 
dence given at the trial to shew that the note was 



448 EASTER TERM, 8 GEO. IV., 1827. 

paid in part of the purchase money, it having been 
in point of fact given before any contract of sale was 
contemplated by the parties. 

Fer Curiam. — Rule discharged. 



Kirk v. Tannahill. 

It seems that a note made at Albany may be declared upon as such under 
the statute of Anne. 

In this case the plaintiff declared upon a promis- 
sory note under the statute of Anne, as made at Al- 
bany, to wit, at Niagara, in the district of Niagara. 

The defendant demurred upon the ground that the 
note appearing on the face of it to have been made 
in foreign parts, could not be considered as a note 
under that statute. 

Washburn, in support of the demurrer, cited an 
authority, where upon special demurrer to a decla- 
ration stating that tlie defendant made his note 
at Philadelphia in parts beyond the seas, to wit, at 
London, &c., according to the form of the statute, the 
court advised the plaintiff to amend. 

Macaulay, contra, contended, that the averment 
might be struck out, as it was admitted the action 
would lie at common law; and observed upon the 
distinction between the present declaration and that 
in the case cited, it being in the latter stated that the 
note was made in parts beyond the seas, which was 
not the case in the present pleading. 

The Chief Justice concurred in the distinction 



EASTDR TEEM, 8 GEO. IV., 1827. 449 

made by the plaintiff's .counsel, that the action be- 
ing a thing ,of mere transitory nature, might be laid 
any where, and that he did ,not think it necessary to 
infer that Albany was in a foreign state. 

Per Curiam. — Judgment for plaintiff. 



Choatb v. Stevens. 

In an affidavit to hold to bail, the provincial statute not satisfied by the 
"words, that the plaintiff had reason to believe that the defendant was 
About to depart this province, without paying, &c. 

The defendant was arrested upon an affidavit de- 
posing, that the plaintiff had reason to believe that 
the defendant was about to depart this province, 
without paying the said debt. 

Ridout had obtained a rule nisi to discharge the 
defendant upon filing common bail, upon the ground 
that the affidavit was defective, as not using the 
words of the statute. 

Macaulay shewed cause, he contended that no 
form of words had been given by the statute — that it 
had merely pointed out the substantial matter to be 
sworn to. 

That the words used in this affidavit expressed 
the apprehension or belief of the deponent, as well 
ias the word apprehensive, which was that used in 
the statute. That the word apprehension is explain- 
ed in Johnson's dictionary, by belief, persuasion, 
opinion. That to have reason to believe, must mean 
to h3.ve a firm persuasion ; that the terms indeed 
57 



450 EASTER TERM, 8 GEO. IV., 1827. 

were synonymous, as well as those, to depart, to 
leave, that without satisfying or without paying, 
could not be distinguished. 

That the words, reason to believe, are used in the 

clause of the statute authorising the capias ad satis^ 

faciendum, which shews that they were considered 

by the statute as having a meaning equally strong 

with the word apprehension. 

Ridout, contra, observed, that the word apprehend 
expressed in a much stronger manner the state of a 
deponent's mind, than the words "reason to believe" 
— that the reason might in fact be such as to be worth 
nothing. 

Mr. Justice Sherwood {a.bsente C. J.) observed, 
that it had been contended by the plaintiff, that the 
words used in the affidavit were synonymous with 
those used in the provincial statute, but that he be- 
lieved few words in the English language were ex- 
actly alike in meaning. Further, that if the courts 
allowed parties to depart from the words prescribed 
by an act of parliament, as proper to be used in the 
affidavit to hold to bail, there would be no knowing 
where to stop. That leaving the authority of John- 
son out of the question, he did not think the words 
were, in popular acceptation, synonymous, and that 
it would be more safe for plaintiffs to use the words 
set out in the act ; he considered, therefore, that the 
affidavit should be set aside, the defendant under- 
taking not to bring any action. 

Per Curiam. — Rule absolute. 



EASTER TERM, 8 GEO. IV., 1827. 451 

Priestman V. McDoUGAL. 

Mistake in the calculation of interest, held not a sufficient ground to set 
aside an award. 

Robert Baldwin moved to set aside the award on 
the ground of mistake in the calculation of interest. 
The affidavit vras made by one of the arbitrators. 

Per Curiam. — Application refused. 



McNair v. Sheldon. 

The motion for a commission to examine witnesses must be supported by 

affidavit. 

Robert Baldwin applied upon motion only, without 
affidavit for a commission to examine upon interro- 
gatories. 

Per Curiam. — Application refused. 



Culver y. Moore. 

There is no necessity for a term's notice by a defendant signing a nonpross, 
&c., although four terms may have elapsed without any proceeding had. 

In this case the defendant filed a demurrer to the 
declaration on the 6th December, 1825. 

Plaintiff joined in demurrer on the 7th. The de- 
fendant not having brought the demurrer on to argu- 
ment, 

On the 28(h of March, 1827, the plaintiff ruled 
the defendant to enter the issue,. which not being 
done, the plaintiff signed a judgment of nonpross. 

Macaulay moved for a rule nisi to set aside the 
nonpross, on the ground that four terms had elapsed 



452 EASTER TERM, 8 GEO, IV., 1827: 

between the 7th day of December, 1825, the time 
plaintiff joined in demurrer, and the day of his ruling 
the defendant to enter the issue. 

The court observing that the rule respecting a 
term's notice, did not apply to cases where a party 
took a step to put an end to a suit, as to judgments 
of nonsuit or to the trial by proviso, and referring 
to the authorities below, (o) 

Per Curiam. — Application refused. 



G-AVAN V. LtOK. 

An agreement between the parties takes away the necessity of a terin's" 

notice. 

In this case there had been an agreement at the 
assizes for 1825, that the trial should be put off until 
the next assizes. 

The plaintiff shortly before the time'fOr trialgave* 
a notice, but not in sufficient time to satisfy the rule 
requiring a term's notice of proceeding, where four 
terms have elapsed. He went to trial and obtained 
a verdict. 

Boulton had obtained a rule wm to set aside the 
proceedings as irregular, urging that the plaintiff 
having actually given notice of trial, should have 
given, it in a regular manner. 

Per Curiam. — The agreement made between the 
parties rendered a term's notice of trial unnecessary 

(a) Barnes, 2 Sulkeld. 



EASTER TEEM, 8 GEO. IV., 1827. 458'' 

in this case, and tlie defendant will therefore take 
nothing by his motion. 

Ridoui was for the plaintiff. 

Eule discharged. 



EoBiNSON" V. Hall. 

The court refused to discharge a prisoner debtor from custody, upon the 
ground, that the gaoler having taken him before a magistrate upon a 
charge of felony, without warrant, permitted an escape. 

Baldwin made an application for an order of court 
to discharge the defendant out of the custody of the 
gaoler of the Midland District. The gaoler, upon an 
alleged charge of larceny, had; without warrant from 
a magistrate or any other authority, carried the de- 
fendant before a justice of peace to be examinedj 
and had afterwards re-conveyed him to gaol. The 
counsel contended this was an escape, and that as it 
was voluntary on the part of the gaoler^ the defen- 
dant was entitled to his discharge. 

Per Curiam. — Application refused. 

Baldwin then applied for an habeas corpus, which 
was granted. 



Jones v. Stewart. 

Where a paper contains matter which is grossly libellous _^er j«., without 
reference to any particular situation or office, it is no objection to a ver- 
dict upon such libel, that the office mentioned in the declaration was of 
an inferior grade, that it was not sufficiently proved that the plaintiff held 
such office, that there was no such office in fact, that no proof had been 
adduced that the person mentioned in the declaration as principal in the 
office was so in fact, nor is an objection that the libel does not supjpbrt the 
innuendoes supported by shewing that there was other matter in the libel, 
not set out in the declaration, which indicated the defendant's reasons for 



454 EASTER TERM, 8 GEO. IV., 1827. 

its publication. Nor is such libel excused on pretence of its being a formal 
application to the head of a department to redress grievances. And 
charging a person with violating a public trust for the purposes of revenge 
are vrords libellous per se., and do not require connecting with any parti- 
cular office. An office may be introduced as an explanatory circumstance. 

This was an action for a libel, tried at the assizes 
for the Johnstown District, and a verdict for the 
plaintiff for £2 5s. 

The libel consisted of detached parts of a letter 
written to Mr. Sutherland, the Postmaster-G-eneral 
at Quebec, accusing the plaintiff of misconduct in the 
management of the post-office at Brockville. 

The declaration, after the usual inducement as to 
plaintiff's character, stated him to be a merchant and 
co-partner, carrying on business with one Henry 
Jones, postmaster, and that he (plaintiff) was occa- 
sionally employed as the deputy acting postmaster, 
agent or clerk of the said Henry Jones, to transact 
the affairs and duties appertaining to the office of 
postmaster at Brockville. 

It then, after the usual averment of malice, sets 
out the libellous matter as follows, but without 
alleging it to be written concerning any office : 

" A false, scandalous, malicious and defamatory 
libel in the form of a letter to Daniel Sutherland, 
Esquire, Postmaster-G-eneral, Quebec, containing, &c., , 
the false, &c., and libellous matter following, that is 
to say : I (meaning him the said John Stewart) am 
teacher of the Bathurst District school, held in the 
town of Perth, Sidney Jones, meaning the said Sid- 
ney Jones, the acting paymaster at Brockville, for 
Henry Jones, the nominal one scarcely ever makes 



EASTER TEEM, 8 GEO. IV., 1827. 455 

up a packet, bears me (meaning the said John 
Stewart) some ill-will, and I (meaning himself the 
said John Stewart) believe he (meaning the said 
Sidney Jones) does not hesitate to violate a public 
trust for the mean gratification of personal revenge. 
I (meaning himself the said John Stewart) request 
that you (meaning the said Daniel Sutherland) will 
interfere your authority to check the insolence of 
office, (meaning that the said Sidney Jones insolently 
discharged the duties of his said office,) and allow 
every subject of his Majesty in this province equally 
to enjoy the benefit of a post-office establishment, 
without lying at the mercy or capricious whim of any 
deputy's deputy, who may delay, overcharge, or 
otherwise injure papers directed to any one, and 
then endeavour to screen himself in the mean, dirty 
subterfuge, that he is not accountable for his conduct, 
as he was acting for another. By means, &c." 

The letter upon which the action was founded, after 
the words personal revenge, contained an account of 
the various alleged grievances which had induced 
the defendant to write to Mr. Sutherland, which, 
however, were omitted in the declaration, being con- 
sidered by plaintiff's counsel as unnecessary to the 
support of his action. 

The verdict was subject to the following objections 
made by the defendant's counsel, upon which Ma- 
caulay obtained a rule nisi to set aside the verdict 
and enter a nonsuit : 

Firstly. — That the office was insufficient to warrant 
the action. 



456 EASTER TEEM, 8 GEO. IV., 1827. 

Secondly. — That there was no sufficient proof that 
the defendant held the office. 

Thirdly. — That there was no such office in fact. 

Fourthly. — That Henry Jones was not proved to 
have possessed the office. 

Fifthly. — That the letter does not support the innu- 
endoes. 

Sixthly. — That the letter being a formal complaint 
to the head of a department, it is not the subject of 
an action for libel. 

The judge who tried the cause had charged the 
jury that they should consider whether the complaint, 
as stated in the letter, was a bona fide charge, for if 
so, that the action would not lie. 

The Attorney and Solicitor-G-eneral shewed cause; 
in answer to the first objection, it was observed, that 
the law had not excepted any public officer, whatever 
rank or estimation his office might be held in, from 
defending himself against libellous attacks, and the 
office of constable was instanced. 

In answer to the second, third, and fourth objec- 
tions it was observed, that the defendant had assumed 
in his libel the facts, that there was such an office, 
that the defendant held or acted in it, and that Henry 
Jones was the principal, which relieved the plaintiff 
from the proof of those facts. In support of which 
position the counsel cited the authorities below. («) 

(o) T. R. 866 ; 2 Starkie, 860. 



EASTER TERM, 8 GEO. IV., 1827. 457 

To the fifth. — That there were no grounds for 
stating that the libel did not support the innuendoes; 
that the words bore the plain meaning ascribed to 
them, and that it was unnecessary to set forth more 
of a paper than was necessary to substantiate the 
plaintiff's charge; that if there were other parts of 
the composition which explained or mitigated the 
offensive matter, they were iit (as had been done, in 
the present case) to be considered by the jury. 

And that the charges were of so direct and gross 
a nature as to render any averment that they were 
published concerning any particular office unneces- 
sary. 

As to the last objection, the counsel observed, 
that the obvious matter for consideration was, whether, 
under pretence of a bona fide communication with a 
view to correct abuses, a person was authorised, in 
general terms, to accuse anothet of the violation of 
public trust, for the gratification of personal revenge, 
of insolence in office, and the other gross and unwar- 
rantable charges put forth in the libel; that the 
answer to which consideration, which reason, princi- 
ple, and the authorities gave, was obviously that this 
could not be done; that epithets outrageously abusive 
could not be justified under pretence of any such 
communications. 

That neither reports of cases in courts of justice, 
or arguments of counsel, if impertinent or without 
instruction, were allowed to contain such matter. 

That to justify such a libel as the one before the 
court, the defendant's counsel must go upon the nar- 

58 



458 EASTER TERM, 8 GEO. IV., 1827. 

row untenable principle that no complai&t against a 
public officer, however offensive the language, could 
be the ground of an action for a libel. In support of 
these observations the counsel cited the authorities 
below, {a) 

Macaulay, contra, insisted that the plaintiff having 
in his declaration set forth an office, and that he was 
the officer, was bound to prove those averments; 
whereas he had in his defence proved that he was 
neither principal nor deputy, not having acted in the 
office for two years ; that if he had in fact acted in 
the office, it was not such an one as entitled him to 
an action. In support of these positions he cited the 
authorities below, {b) 

In support of the objection that the libel was not 
supported by the proof, he urged, that as there was 
much more matter contained in the letter than in the 
libel as stated upon record, and which matter went 
to explain the reasons for the defendant's complaint, 
the whole letter, with its extenuating and explanatory 
parts, was intrinsically a different composition, bear- 
ing a very different interpretation to the extracted 
part when taken alone.' 

That there should have been a statement that the 
libellous matter was written " of and concerning the 
alleged office." 

That the matter, as charged, did not warrant the 
innuendoes. 

(a) Stai-kie 136 ; 3 B. & A. 161, 702. (i) Starkie 115, 116, 433, 859, 60, 
378 ; 1 Ventris, 275. 



EASTER TERM, 8 GEO. IV., 1827. 459 

That the paper itself, and the statement in the 
declaration taken separately, did not bear the same 
sense. The counsel read the commencement of the 
letter as follows : 

" I would not trouble you by letter at this time, 
but a sense of duty urges me to make you acquainted 
with the treatment which I have received from the 
Brockville post-office;" he then read the first branch 
of the libel set forth in the declaration, and proceeded 
with the intermediate part of the libel from the words 
personal revenge as follows: "Last fall I received 
several small single letters from the Brockville post- 
office, a,ll marked double, and all following each other 
in succession." 

"This strange coincidence caused me to write a note 
to Sidney Jones, civilly requesting an explanation ; 
instead of this my own note is put under cover with- 
out remark or comment, charged double and sent to 
Perth. I then sent him another note while I was in 
Brockville, which I must confess was not very com- 
plimeutary to his integrity in the discharge of a pub- 
lic situation. This shared the same fate with the 
former one, viz., ' charged double and sent to Perth.' 
I am agent for the Canadian Review. When the par- 
cel of the third number of this work, which was 
meant to supply the Perth subscribers, was on its 
way to this place, it was intercepted at Brockville, 
where it lay several weeks; and when at last it was 
thought proper to forward it, it was stripped of the 
cover, directed to me, and given to the post-carrier, 
who charged 4s. 6d. extra postage, whether by Jones* 
order or not I cannot say, I wrote to Mr. Chisholm 



460 EA8TER TERM, 8 GEO. IV., 1827. 

how I had been treated ; he strongly advises me to 
represent the whole transaction to you as the only 
person capable of finding a remedy for the evil; I 
have done so." 

. The counsel, after reading the remainder of the 
libel charged, contended, that the whole sense of the 
letter, taken together, altered the sense of the part 
charged as the libel, and so varied from the matter 
on the record. 

In support of these positions the counsel cited the 
authorities below, {a) 

On the ground of the letter being an authorised 
application for redress to the head of the department, 
the counsel observed, that although the terms used 
might be uncouth, that such may be used if the case 
warrants it, and the party is not actuated solely by 
malice; and that if the subject matter be true, malice 
did not alter the propriety of the complaint. 

That the jury should have been directed to con- 
sider, whether malice was or was not the prepon- 
derating motive upon reference to the whole tendency 
of the paper. That to have found the verdict against 
the defendant they should have been convinced that 
he had no ground for his complaint. \_Sherwood, J., 
here called to the counsel's recollection, the evidence 
of the witness Titt, and asked if he meant to contend 
that there was no evidence of malice.] 

That there was nothing in the letter itself, written 
by an angry man, to shew malice. 

(a) Starkie on Libels, 334, 7, 44; on Evid. 1546; 4 M. & S. 164, 5; 1 
Saunders, 243, N. 4 ; 8 East, 427 ; 5 B. & A. 615 ; 1 CampbeU, 852, 3 ; 2 
Comp. 398. 



EASTER TERM, 8 GEO. IV., 1827. 461 

He concluded by observing, that he doubted 
whether the jury understood the charge properly, 
that they might have thought the direction to them 
was merely to consider whether the face of the libel 
itself shewed malice. 

The Chief Justice observed, that the authority 
cited from Yentris, which confined actions for libel 
to offices of a certain grade, was not now the law, and 
that the other grounds stated were not sufficient t,o 
warrant a nonsuit. 

Per Curiam. — Rule discharged. 



Same v. Same. ; 

Macaulay moved to arrest the judgment upon the 
ground that there was no averment in the declara- 
tion that the libel was written of and concerning the 
plaintiff's office, contending that the cause of action, 
as set forth, was imperfect without , such averment. 
He also insisted, that charging the plaintiff with in- 
solently discharging the duties of his office, was not 
libellous without some explanation, and was another 
ground for his motion. He cited the authorities 
below, (a) 

The Chief Justice observed, that the libel was such 
as would be actionable without any office being men- 
tioned or referred to. 

That the averment respecting such office might be 
struck out and sufficient ground of action would still 

(a) 4 M. & S. 164 ; Cowper, 686 ; Com. Dig. c. 10. 

* 



462 BASTEE TEEM, 8 GEO. IV., 1827. 

appear upon the record, the words, " violating a pub- 
lic trust," might be taken without reference to any 
office, and would be libellous. 

Sherwood, J., observed, that however valid the 
objection might be in an action for words merely, he 
did not consider them so in a case of written libel. 

Where words are not actionable in themselves, 
without referring to a trade or profession, there must 
be the averment contended for by the defendant's 
counsel. Not so in the present case, where the men- 
tion of of&ce is merely introduced as explanatory ; 
and that the plaintiff's conduct would have been most 
extraordinary if it had been introduced with any 
other view, as he had brought evidence at the trial 
to prove that he had not acted in the office for a 
length of time. 

That the words alleged, viz., that the plaintiff 
would violate public trust for purposes of revenge, 
were libellous per se, without reference to any office, 
and made it unnecessary to resort to the doctrine 
contended for by the defendant's counsel. 

Per Curiam. — Application refused. 



Walbkidgb v. Lunt. 

A commissioner ■who takes a recognizance of bail cannot himself make the 
affidavit of such taking. 

This was an application to stay proceedings upon 
the bail bond, which had been taken, in consequence 
of the affidavit of bail being put in having been 



EASTER TERM, 8 GEO. IV., 1827. 463 

sworn to by the commissioner himself who took the 
recognizance. 

Fer Curiam. — Application granted upon payment 
of costs. 



Smith v. Kennett. 

A notice of intended motion for judgment as in case of a nonsuit will not 
supply the place of a rule nisi. 

Plaintiff's counsel moved for judgment as in case 
of a nonsuit (absolute) upon affidavit of the usual 
■facts, and that nbtice of the intended motion had been 
given. 

Per Curiam. — Eule absolute refused, but rule nisi 
granted. 



Wood, Administrator, &c., v. Leeming et al., 

Devisees, &c. 

The court refused to interfere summarily to set aside a sheriff's sale and 
covenant, for payment of purchase money entered into thereon, upon 
grounds suggesting that the sale was unfair, and that the court had an 
equitable jurisdiction over the acts of its officers. 

Boulton, Solicitor-General, applied for a rule nisi 
to set aside the proceedings had under a sheriff's 
sale, by which he had sold lands as in the hands of 
the defendants to a Mr. O'Hara, who had given an 
obligation under seal for the amount of the purchase 
money; the application also prayed an order upoii 
the sheriff to give up or cancel the obligation for thfe 
purchase money given by Mr. O'Hara. 

The grounds of the application were that a good 



404 EASTER TERM, 8 GEO. IV., 1827. 

title could not be made, and that these proceedings 
and sale having been made by an officer of the court, 
were sufficiently under their control to authorise an 
equitable interference, particularly as there was no 
Court of Chancery in this country to which Mr, 
O'Hara could apply. 

Fer Curiam. — Application refused. 



NiCHALL V. CaRTWRIGHT AND ANOTHER. 

Rohinson, Attorney-G-eneral, applied for leave to 
enter judgment upon a cognovit against one defen- 
dant only. Suggestion of the death of the other 
being entered upon the roll. 

Per Curiam. — Application granted. 



Dob ex dbm. Dunlap v. MoDougal. 

Where the heir and the widow of the mortgagor remained in possession after 
the death of the ancestor, but had frequently recognised the title of the 
mortgagee, it was held no disseisin. 

This was an action tried at the assizes for the Nia- 
gara District, and a verdict for the plaintiff. 

Colin MacNab, the elder, being seised in fee of the 
premises in question, mortgaged them to Edwards 
by deed, dated the 16th February, 1802, whose 
estate became absolute at law, in consequence of the 
non-payment of the mortgage money on the first of 
October in the same year. 

In the year 1810, Colin MacNab, the mortgagor, 



EASTER TEEM, 8 GEO. IV., 1827. 465 

died, haviiig continued in possession until his death, 
leaving his widow and heir in possession. In the 
same year, but subsequent to the mortgagor's death, 
Edwards, the mortgagee, cQuveyed absolutely \o the 
heir of the plaintiff's lessor. Edwards never having 
made any actual entry, the tenant in possession 
claimed as purchaser at a sheriff's sale, which took 
place under Si^eri facias issued against the lands of 
Golin MacNab. It was insisted at the trial, that the 
mortgage having been executed more than twenty 
years ago, a presumption arose that the mortgage 
money had been paid. To rebut this presumption, 
evidence was given of conversations had between the 
widow as well as Colin MacNab, the heir of the mort- 
gagor, and the agent of the mortgagee, with a view of 
settling the amount due upon the mortgage. Also of 
the infancy of plaintiff's lessor during a great part of 
the period which had elapsed since the execution of 
the mortgage. 

The judge who tried the cause had not particu- 
larly called the attention of the jury to the fact of 
presumption of payment. 

Boulton, Solicitor-Greneral, had obtained a rule 
nisi to set aside the verdict and grant a new trial, 
the verdict being contrary to law and evidence, con- 
tending, that Edwards having been disseised by Mac- 
Nab's heir, had not been able to make an effective 
deed of bargain and sale to Dunlap, and for non- 
direction of the judge. 

iZoiewsow, Attorney-General, shewed cause.— After 
premising that Edward's deed to Dunlap, the ances- 
59 



466 EASTER TERM, 8 GEO. IV., 1827. 

tor of plaintiff's lessor, being absolute instead of by 
way of mortgage, was immaterial, as mortgagors and 
mortgagees could do nothing to prejudice each other, 
the mortgagor having his equitable remedy against 
the assignee, as well as against the original mortga- 
gee, (a) 

He observed that the possession of the mortgagor 
was the possession of the mortgagee, and that he 
could never stand in his way. (b) 

That he was a tenant at sufferance and not at will, 
which invalidated any argument which considered 
the death of MacNab, the elder, as the determination 
of an estate at will. In the case reported in 
Croke, (c) the mortgagor made a lease for three 
years, and after its expiration returned into posses- 
sion. The lessee being a stranger and without 
privity, it was attempted to make him a disseisor, 
but it was held that the case worked no disseisin. 

That to make the heir of MacNab a disseisor his 
father must have been a disseisor, or he must have 
entered tortiously, which was not the present case. 
His situation was analogous to that of a trustee or 
agent, who could not be disseis9rs. That an equity 
of redemption being now considered as the subject 
of inheritance, the heir must be considered as having 
continued in possession merely with the view of ex- 
ercising that right. 

He further contended that the elder MacNab not 
having in him an estate of freehold, and, therefore, 

(a) 2 Black. Com., 158; 1 Coke, Litt., 210. (J) 2 Institute, (c) Croke, 
James, 660. 



EASTER TERM, 8 GEO. IV., 1827. 467 

not being a disseisor, his heir could not be consid- 
ered as such. 

He stated that the absurdity and inconvenience of 
the doctrine of considering an heir who merely re- 
mained in his ancestor's lawful possession as a dis- 
seisor, would prevent all mortgages from taking 
place, as no one would lend his money upon real 
security if he was liable to be disseised in the man- 
ner contended for. 

As to the ground of presumption of payment he 
contended that the evidence of Mr. Dickson was suf- 
ficient to rebut it. That there was a great distinc- 
tion between presumptions of this sort, and the time 
appointed by the Statute of Limitations. In the case 
of bonds the custom had been to consider 20 years 
as a ground of presumption, but no time had been 
established for mortgages, and that it was farther 
answered by the deeds being in possession of Dun- 
lap, and the infancy of the plaintiff. 

Boulton, contra, contended that a person not in ac- 
tual possession cannot convey. Edwards, therefore, 
not having been in possession, as he had been dis- 
seised by the entry of the heir of MacNab, could 
not convey. He supported his position by reference 
to the Statute of Uses, which enacts that when any 
persons shall be seised of lands, &c., to the use of 
another, the cestui que use shall stand and be seised 
or possessed of the land, &c. 

That in the present case Edwards, having been 
disseised by the entry of Colin, the younger, could 



468 EASTER TERM, 8 GEO. IV., 1827. 

not stand seised to the use of another, and 1161*6 fore 
his deed of bargain and sale could not raise an tise 
in Dunlap's favour. 

He admitted that while MacNab, the elder, lived, 
Edwards, the mortgagee, was in possession by virtue 
of the possession of MacNab, the mortgagor, who 
was quoad his tenant ; but that his tenancy being at 
an end by his decease, and it being necessary that 
the freehold should subsist somewhere, (a) it vested 
in Colin, the son, who took an unqualified possession 
as heir of his father, which the counsel contended 
amounted to a disseisin : for where one takes as heir, 
he takes the whole estate. 

That the case cited of a mortgagor making a lease 
for years was not in point, as the disseisin was 
purged by the return of the mortgagor into posses- 
sion, as it would have been in the present case if 
MacNab had returned into possession after disseisin. 
The counsel insisted there was no case to shew that 
the heir of a mortgagor was in the same situation 
with his ancestor. 

In the present case the heir entered generally 
without consent ; paid no interest ; and no inference, 
the counsel contended, could be made by the court 
that his entry was not tortious. 

The evidence of Diicon as to the Conversations 
held with him and the widow w'6re insuffieient-^pay- 
ment of interest might have altered the case, (a) 

He doubted also whether the evidence given of 

(a) Saunders, 246. (o) 5 3. & A., 604. 



EASTER TERM, 8 GEO. IV., 1827. 46.9 

these conversations should not have been rejected 
by the judge who tried the cause. 

That if it was said that the possession which was 
continued after MacNab's death was that of the 
widow, it would, after her forty days, have the same 
effect of disseising Edwards, and thereby making 
him incapable of being seised to Dunlap's use; for 
every unlawful continuation of possession, is a tres- 
pass in the same manner, as every continuation of 
the possession of goods stolen is a fresh asportation 
in the county to which they are taken. 

That arguments drawn from the inconvenience 
which persons residing abroad or at a distance would 
suffer by being compellable to make entries, were 
obviated by the consideration that they might do it 
by attorney. 

As to the presumption of payment of the mortgage 
money, he contended from the case of Wilson v. 
Wetherley, (a) that the twenty years' possession of 
MacNab and his heir was a sufl&cient ground for the 
presumption, which the evidence of the conversations 
had between the widow and children and Mr. Dixon 
was not sufficient to rebut, they not having been 
proved to have had any interest, and he contended 
that the evidence should not have been received. 

He concluded by observing that the questions be- 
fore the court were, whether Edwards was not out 
of the possession when he made the bargain and sale 
to Dunlap. 

(a) Bull., N. P, 



468 EASTER TERM, 8 GEO. IV., 1827. 

not st^nd seised to the use of another, and therefore 
his deed of bargain and sale could not raise an tise 
in Dunlap's favour. 

He admitted that while MacNab, the elder, lived, 
Edwards, the mortgagee, was in possession by virtue 
of the possession of MacNab, the mortgagor, who 
was quoad his tenant ; but that his tenancy being at 
an end by his decease, and it being necessary that 
the freehold should subsist somewhere, (a) it vested 
ia Colin, the son, who took an unqualified possession 
as heir of his father, which the counsel contended 
amounted to a disseisin : for where one takes as heir, 
he takes the whole estate. 

That the case cited of a mortgagor making a lease 
for years was not in point, as the disseisin was 
purged by the return of the mortgagor into posses- 
sion, as it would have been in the present case if 
MacNab had returned into possession after disseisin. 
The counsel insisted there was no case to shew that 
the heir of a mortgagor was in the same situation 
with his ancestor. 

In the present case the heir entered generally 
without consent ; paid no interest; and no inference, 
the counsel contended, could be made by the court 
that his entry was not tortious. 

The evidence of Dilson as to the conversations 
h6ld with him and the widow were insufficient^-piay- 
ment of interest might have altered the case, (a) 

He doubted also whether the evidence given of 

(a) Saundere, 246. (a) 5 B. & A., '604. 



EASTER TERM, 8 GEO. IV., 1827. 469 

these conversations should not have been rejected 
by the judge who tried the cause. 

That if it was said that the possession which was 
continued after MacNab's death was that of the 
widow, it would, after her forty days, have the same 
efifect of disseising Edwards, and thereby making 
him incapable of being seised to Dunlap's use; for 
every unlawful continuation of possession, is a tres- 
pass in the same manner, as every continuation of 
the possession of goods stolen is a fresh asportation 
in^e county to which they are taken. 

That arguments drawn from the inconvenience 
which persons residing abroad or at a distance would 
suffer by being compellable to make entries, were 
obviated by the consideration that they might do it 
by attorney. 

As to the presumption of payment of the mortgage 
money, he contended from the case of "Wilson v. 
Wetherley, (a) that the twenty years' possession of 
MacNab and his heir was a sufficient ground for the 
presumption, which the evidence of the conversations 
had between the widow and children and Mr. Dixon 
was not sufficient to rebut, they not having been 
proved to have had any interest, and he contended 
that the evidence should not have been received. 

He concluded by observing that the questions be- 
fore the court were, whether Edwards was not out 
of the possession when he made the bargain and sale 
to Dunlap. 

(«) Bull., N. P. 



4'/0 EASTER TERM, 8 GEO. IV., 1827. 

And whether the evidence of the conversations 
referred to in argument, should not have been re- 
jected ? 

Shbr"W00d, J. — All the objections taken at the 
trial of this cause are abandoned except one, which 
is, that when the conveyance was made by Edwards 
to Dunlap the former was not in possession of the 
premises so conveyed, but that a disseisor had the 
actual possession at that time, and it therefore be- 
came necessary, in order to effect a valid conveyance, 
for Edwards to enter and seal a deed on the premi- 
ses. It is admitted that Colin MacNab, the mort- 
gagor, died in possession of the premises in April, 
1810, and that Edwards made the conveyance in 
question in the month of October following. In the 
interim between the last mentioned periods, and at 
the time of the execution of the conveyance by 
Edwards, the widow of the mortgagor was in pos- 
session of the premises, and subsequently continued 
in such possession for a number of years. 

While the widow so resided on the premises and 
after the conveyance from Edwards to Dunlap, both 
she and Colin MacNab, the younger, the heir-at-law 
of the mortgagor, acknowledged that the mortgage 
money had not been paid, and seemed desirous that 
it might in some way be satisfied. These appear to 
me the principal facts in the case. 

In the argument upon the motion for a new tz'ial, 
the defendant contended that the act of taking pos- 
session and continuing it by the widow amounted to 
a disseisin, and that Edwards being a disseisee no- 



EASTER TERM, 8 GEO. IV., 1827. 471 

thing passed by his deed. The sole question there- 
fore for the court to determine, is whether there was 
a disseisin or not ; because I take it for granted that 
if there was, the deed from Edwards was ineffectual. 

Whatever may have formerly been the doctrine 
relative to disseisin, it seems to be fully settled at 
this day, that to constitute a disseisin the act must be 
of that nature that an intention to disseise can be 
clearly inferred from it. (a) 

In order to make a title by disseisin there must 
be a wrongful entry, (b) Tn the present case, I 
think no inference can be drawn that the widow in- 
tended to disseise the mortgagee ; but on the con- 
trary, her recognition of his title is quite apparent 
from her admission of the justice of his demand, and 
of its actual existence. It is true that this recogni- 
tion was made several years after she commenced to 
occupy the premises ; but still I think it goes to 
shew the intention with which she took possession, 
and negatives the fact of disseisin. Neither Ed- 
wards, the mortgagee, nor Dunlap, his assignee, ever 
objected to the occupation of the premises by the 
widow, which appears suflicient to me to warrant the 
inference that both of them assented, especially as 
the widow admitted the validity of the claim under 
the mortgage. The view, therefore, which I take of 
the whole case is, that the occupation of the widow 
was by the assent and implied permission of Ed- 
wards, and subsequently by Dunlap, and that the 
widow from the beginning fully recognised the claim 
under the mortgage, and if so, that there was no ad- 
verse possession. 

(a) 12 East, 141 ; 3 M. & S., 271. (A) 1 Salk.^ 245 ; 5 B. & A., 689. 



472 EASTER TEEM, 8 GEO. IV., 1827. 

It appears to me that the deed from Edwards to 
Dunlap is a valid conveyance, and that the lessor of 
the plaintiff is entitled to judgment. 

The Chief Justice, referring to the case of Smartle 
V. Williams, {a) observed, that he considered there 
were sufficient circumstances in this case to take it out 
of the dictum there laid down, " that the entry of the 
heir of a mortgagor upon the mortgaged estate was 
a tortious entry," as in the present case the heir who 
remained upon the mortgaged estate after the decease 
of the mortgagor, had always acknowledged the title 
of the mortgagee. 

Per Curiam. — Rule discharged. 



In the matter op Hugh Oaeprae. 

The court refused to order a sheriff to re-fund money received by bim as the 
price of land sold at sheriff's sale, the purchaser having been ejected upon 
the ground that lands could not be sold under a fi. fa. as assets in the 
hands of an administrator. 
* 

This was an application on the part of Mr. Car- 
frae, for an order upon the late sheriff of the Home 
District, to re-fund the sum paid to him as the pur- 
chase money of a freehold estate, which had many 
years ago' been assigned to him as the purchaser 
thereof by sheriff's deed. 

The estate had been sold under a judgment ob- 
tained in a suit of ^G-ray v. Ruggles as assets in the 
hands of the administratrix, and the purchase money 
still remained in the sheriff's hands. The heir-at-law 
had recently brought an ejectment and recovered the 

(«) ;Holts BeportB,- 6 W. & M. 



EASTER TERM, 8 QEO. IV., 1827. ■4^7i3j, 

possession upon the ground that freehold estq,te was 
not subject to be. sold, as assets in the hands of an 
administrator. 

The Chief Justice observed, that this application 
had arisen in consequence of the difference of opinion 
in this court, respecting the construction or operation 
of the 5th Geo. II., some of the judges having con- 
sidered that lands might be sold as assets in the 
hands of an administrator, while others considered 
that they could not. That his own had. been the 
latter impression, and the Chief Justice referred, to 
the case of Wycott v. McLean, administrator of Eob- 
inson. (a) 

Mr. Justice Sherwood observed, that he was not 
prepared to say whether lands in this province can 
or cannot be sold by process against executors or 
administrators. Lands in Barbadoes, he observed, 
were considered as quasi chattels until the testator's 
or intestate's debts were paid. He wished to have 
the question argued before he gave an opinion on the 
subject. 

Per Curiam. — Application refused. 



De Riviere et al. v. GtRant. 

Wbere the plaintiff declared as upon a penal bill, and gave in evidence a 
bond witb a condition in the usual form, it was held not a sufficient v»ri-; 
ance to set aside a verdict, it should have been taken advantage of bj; 
spjBcial demurrer upon oyer. 

This action was tried at the assizes, where the 
plaintiff was nonsuited with leave to move. The 
declaration was upon a bill penal, stating that the 

(a) Vide Eugglesv. Carfrae. 

60 



474 EASTER TEEM, 8 GEO. IV., 1827. 

defendant by his certain writing obligatory sealed, 
&c., bound himself, his heirs, &c., unto plaintiffs in 
the sum of £8218 of lawful money, &c., to pay or 
cause to be paid unto plaintiffs the full sum of 
£4109 with interest, as follows, that is to say (setting 
out the instalments) averment of non-payment. Plea 
no7i est factum. 

The evidence given at the trial to support this 
declaration was a bond with a condition thereunder 
in the ordinary modern form, upon which the plain- 
tiff was nonsuited. 

Washburn had obtained a rule nisi to set aside 
the nonsuit and enter a verdict for the amount of 
the debt declared for. He observed that the form 
had been taken from Morgan's precedents, and now 
moved to make the rule absolute. 

Sherwood, J., gave the judgment of the court. — 
The declaration in this case states that the defend- 
ant is indebted to the plaintiffs upon a penal bill to 
secure the payment of a less sum by several instal- 
ments. At the trial a bond was produced in evi- 
dence to support the action, which corresponds in 
the amount of penalty with the penal bill, and con- 
tains a condition for the payment of a less sum by 
instalments at the same time, and of the same 
amount as mentioned in the declaration. It was ob- 
jected at the trial, that a material variance was ap- 
parent between the penal bill declared upon, and the 
bond produced in evidence, because the latter had a 
condition underwritten. 

Although the declaration in this case is not drawn 



EASTER TEKM, 8 GEO. IV., 1827. 475 

with technical precision, and such a form ought never 
to be adopted when the instrument declared upon is 
accompanied with a condition, still, I think, that 
since the passing of the statute 8th and 9th Will., 3, 
c. 11, that there is no essential difference in the le- 
gal effect of a penal bill for payment of money by 
instalments, and an obligation with a condition for 
the same purpose. In my opinion no objection on 
the ground of variance in this case should have been 
allowed at the trial, and if any advantage could 
have been taken of such a circumstance, it must 
have been so done upon special demurrer after ob- 
taining oyer of the obligation, and not on the plea of 
non est factum, which was pleaded in this case. 
The case of Cartridge v. G-rifiBth, {a) and the case of 
Harrison v. Yallance, although their circumstances 
are quite different from the present, go to establish 
the doctrine that the legal effect of a deed is to be 
considered at the trial rather than the exact corres- 
pondence of form, and that the plaintiffs ought not 
to be nonsuited on the ground of misdescription if 
the deed produced in evidence can have the same 
legal effect as the one mentioned in the declaration. 
I think the nonsuit should be set aside. 

Per Curiam. — Rule absolute. 



(a) B. & A., 57 ; 1 Bingham, 45 



[476] 
TRINITY TERM, 8 GEO. IV., 1827. 



Present : 

The Honourable Chief Justice Campbeel. 
Mr. Justice Sherwood. 



The King v. Whitehead, one, &c., and Ward, 
Esquire. 

Where an attorney of this court practising in an inferior court has charged, 
aod the judge has allowed costs clearly not sanctioned by law, this court 
■will punish by fine or attachment. 

Mr. Ward, the judge of the district court of New- 
castle, and Mr. Whitehead, one of the attorn eysof 
this court, having this day appeared at the bar upon 
the return of an attachment which had issued against 
thetn; against the former for a fcharge of extortion, 
and for having in several instances taken illegal fees 
for business done in the district cOurt, and for having 
made charges for disbursements which he had not in 
fact made; against the'latter on a (ihafge of not hav- 
ing adhered (in the taxation of Mr. Whitehead's bills) 
to the table of fees prescribed by the provincial 
statute. The circumstances had been presented by 
the grand jury at the quarter sessions for the New- 
castle District, and had been by the judge referred 
to the consideration of the Solicitor-G-eneral there 
present, who had brought the facts before this court 
in a former term, which facts having been substan- 
tiated to the satisfaction of the court by affidavits, 
and those facts not having been satisfactorily answered 
to the court upOn interrogatories administered to the 



TRINITY TERM, 8 GEO. IV., 1827. 4? 7 

defendants, an attachment had issued, which being 
this day returnable, the Attorney-Greneral moved 
for the judgment of the court, which was pronounced 
by the honourable the Chief Justice, as follows : 

' Chief Justice. — Mr. Whitehead — the manner in 
which the accusations against you have been brought 
to the notice of the court, namely, by the represen- 
tation of a grand jury of the country, give them ad- 
ditional importance. 

In their presentment, which stated various acts of 
extortion, and other unfair practices, I perceived 
they had included many things which were more fit 
subjects for the examination of this court than for 
the investigation of the petit jury at the assizes, and 
I therefore referred them to the consideration of the 
Crown of&cer, who has deemed it his duty to bring 
them before this court, in the manner which he has 
done. 

The court have examined a great number of affi- 
'davits, containing charges against you of having 
taken illegal fees ; they have also examined a great 
number of bills of costs which have been taxed and 
allowed in the different districts of this province, by 
the persons who had the immediate superintendence 
of the practice of the district courts, and which bills 
you have produced, in order to shew that your 
charges *do not in general vary from those taxed in 
other courts. If the charges authorised in those bills 
were even larger than those you have made, that 
circumstance would be no justification. Your exhi- 
biting those documents was rather injudicious, as 



478 TEINIlY TEEM, 8 GEO. IV., 1827. 

rendering it imperative upon the court to draw a 
comparison, the result of which is unfavourable to 
you, as the greater part of them do not come up to 
yours. 

It appears that you have for a considerable time 
injured the suitors in the district wherein you prac- 
tice, in a manner very discreditable to the general 
administration of justice, and particularly so to the 
character of that court in which you have been prin- 
cipally conversant. 

It is the duty of this court to superintend the pro- 
ceedings of all inferior jurisdictions, but your con- 
duct is more especially and immediately under the 
cognizance of this court, in which you are a minister, 
and in virtue of that character are allowed to prac- 
tise in the local courts of the country. 

This court consider your conduct as so improper, 
in many instances, that it would be justified in strik- 
ing off your name from its roll; but, considering that 
this is the first instance of the kind that has been 
brought before the court, it is unwilling to proceed 
to such extremities, but such a sentence must be 
pronounced as may strongly mark its disapprobation 
of your conduct, and, at the same time, convince you 
that a repetition of the same would be visited by the 
heaviest censures. The sentence of the court, there- 
fore, is, that you pay a fine of fifty pounds, and re- 
main in custody until the same is paid. 

Mr. Ward, you may imagine that this court feel 
much pain in finding it necessary to visit, by their 



TRINITY TEEM, 8 GEO, IV., 1827. 479 

reprehension, a person whose respectability of cha- 
racter has been so long and so well established in 
this province ; but the complaint which has been 
brought to light against Mr. Whitehead considerably 
implicates you, and, therefore, you have necessarily 
been called upon. You have given the best expla- 
nation of the misconduct or neglect attributed to you 
of which you were capable ; but that explanation is 
not satisfactory. We must either suppose a degree 
of ignorance or gross negligence, by no means com- 
plimentary to a person of your profession and situa- 
tion, or be obliged to attribute your conduct to mo- 
tives which would be still more disgraceful and even 
criminal. 

Among other instances, the charge which has ap- 
peared against you is taxing illegal fees, as costs of 
the day, against a plaintiff in whose behalf you 
had granted a new trial, and has been fully substan- 
tiated ; nor is the excuse offered by your counsel, 
that those fees were taxed by the consent of the at- 
torneys concerned for both the parties in the suit, at 
all satisfactory. To allow such an excuse would in- 
troduce a doctrine too injurious to suitors to be ad- 
mitted by this court. It would render it too easy a 
matter for attorneys opposed to each other to con- 
nive at improper charges, to the great injury of 
suitors. 

You have an act of the legislature of this country 
pointing out a table of fees by which you are to be 
directed in your taxation of costs, and by no other. 

Setting at naught the provisions of this statute, 
you have incurred the imputation of great neglect 



480 TRINITY TERM, 8 GEO. IV., 1827. 

or of improper motives, either of which this court 
are bound to notice. 

The family connexion which it appears subsists 
between you and Mr. Whitehead, compared with 
other facts, unfortunately gives a ground for suspi- 
cion that you may from that circumstance have al- 
lowed yourself to have been subjected to a degree 
of improper influence incompatible with your duty, 
but which may have probably arisen from your good 
opinion of, as well as your good feelings towards, 
that gentleman. 

This connexion made it your duty to be doubly 
vigilant in cases in which that party was concerned ; 
for however amiable such a feeling may be in pri- 
vate life, it must never be allowed to interfere in the 
administration of justice. It induces a bias of which 
we are not always sensible, and which ought, there- 
fore, to be the more cautiously guarded against. 

The items which you have allowed in your taxa- 
tions of costs, as appears by the affidavits exhibited, 
are, without doubt, contrary to law, and as it is not 
only in the power, but also the duty of this court to 
see strict justice is duly administered, in all inferior 
jurisdictions, you have subjected yourself to its 
censure. 

This court is, however, pleased to find that this 
reprehensible conduct on your part has not proceed- 
ed from the criminal motive of putting money in 
your own pocket, so that your character for integrity 
in that respect remains unimpeached, but still your 
duty should go further. 



TRINITY TEEM, 8 GEO. IV., 1827. 481 

Although in consideration of this distinction which 
the court has been able to draw in your favour, and 
of your general excellent character it is inclined to 
be lenient, you must be apprised that a repetition of 
such conduct would be severely visited. 

The inferior courts of this country have not that 
discretion in establishing the quantum of costs which 
has been given to this court ; such courts have no- 
thing to do but to adhere to the table of fees pointed 
out by the statute. 

This you have not done, and are, therefore, highly 
censurable ; but the court considering that you have 
not been influenced by corrupt motives, do only sen- 
tence you to the payment of a fine of five pounds, 
which is the greatest degree of lenity it could possi- 
bly exercise towards you. 



Taylor v. Eawson. 

Where a person in possession of a promissory note sued in the name of the 
payee, the court refused to set aside the proceedings after judgment upon 
an affidavit by the supposed payee that he had never possessed such a 
note ; the defendant at the same time not swearing that he had never 
given such a note. 

George Boulton moved for a rule nisi to dis- 
charge the defendant out of custody, upon the 
ground that one David Smith had carried on the 
proceedings against defendant without any authority 
from the nominal plaintiff, or why said Smith should 
not be attached. 

The action had been commenced upon a promis- 
sory note signed by the defendant, which had been 
purchased by Smith and put in suit in plaintiff's 

name. 

61 



482 fEINITY TERM, 8 GEO. IV., 1827. 

The affidavit to support the motion was made by 
the nominal plaintiff, who resided in the state of New 
York. It stated that he never empowered in writ- 
ing or by parol any person to sue for or discharge a 
note payable to himself by the defendant, as he 
never was the owner, possessor, or proprietor of 
such a note. 

There was no affidavit made to the same effect by 
the defendant, or denying his having given the note 
upon which the action was brought. The defendant 
was in custody upon a ca. sa., after having suffered 
judgment to go by default. 

The court observing that the application was out 
of season, and that the defendant had tacitly ac- 
knowledged that he had signed the note, not having 
contradicted it by affidavit. 

Application refused. 



Robinson v. Hall. 

The court refused to discharge a prisoner out of custody on the ground that 
the gaoler had taken him to a magistrate upon suspioioii of his having 
cominitted a larceny in the gaol. The court refused to commit a prisoner 
brought by ha. co. from a county gaol to the custody of the sheriff of 
York. The court determined it not unreasonable for the gaoler to charge 
6d per mile, both going and returning with a prisoner by habeas corpus. 

The defendant, a prisoner in the custody of the 
gaoler of Kingston, was brought up under a habeas 
corpus issued last term, the writ of capius ad respon- 
dendum under which he was confined, and the return 
to the writ of habeas corpus being read, Baldwin 
moved for his discharge under the following circum- 
stances : the prisoner was some time after the re- 



TRINITY TEEM, 8 GEO. IV., 1827. 483 

turn of the mesne process under which he had been 
confined, suspected by the gaolef of having commit- 
ted a larceny in the gaol, and he thereupon, assisted 
by an escort of soldiers, took him without any war- 
rant before a magistrate residing in the town of 
Kingston, without the limits of the gaol ; and after 
his examination and commitment, took him back into 
custody. It appeared that the defendant was after- 
wards acquitted of the charge at the quarter ses- 
sions. 

Baldwin contended that this removal by the 
gaoler was a voluntary escape, and that therefore 
the prisoner's subsequent confinement being illegal 
he vras entitled to his discharge, and cited Atkinson 
v. Matteson, and the cases there cited, as shewing 
by clear inference, that a prisoner once voluntarily 
permitted to go at large after the return of the writ, 
(mesne process) cannot be re-taken by the bailiff ; 
shewing, that although a bailiff may permit a pria- 
soner to go at large before the return of the writ he 
cannot do so after it. 

The counsel cited the case of Borthman v. the 
Earl of Surrey, {a) as shewing that a bailiff, who re- 
moves a prisoner out of his custody without a habeas 
corpus or other lawful authority, is liable in debt 
for escape. 

He further contended that as in the present case 
the gaoler could have had no pretence or claipa to 
an escape warrant, that he could not therefore re-take 
or bring back the prisoner after he had taken him 
out of the gaol. 

(a) 2 T. R., 5. 



484 TRINITY TERM, 8 GEO. IV., 1827. 

The Attorney-General, in reply, observed that 
there was a distinction between mesne process and 
execution, that, in the latter case, the close custody 
of the prisoner, the arcta et salva custodia was the 
plaintiff's satisfaction for the debt, but that in the 
former the custody was only with a view to the pro- 
duction of the defendant at the close of the suit, and 
that therefore other custody than that of the gaol 
answered the same purpose, and doubted if the court 
would enquire in what custody a prisoner confined 
upon mesne process was. 

That it was unreasonable to suppose that a pris- 
oner could not be removed on any occasion without 
an ha. co. At the sessions where the testimony of 
prisoners might be required it could not be obtained. 

That none of the authorities went to shew that the 
party imprisoned might himself apply to be dis- 
charged under circumstances like the present. 

That if the counsel could cite any instance of a 
prisoner in execution being discharged by the court, 
who had been taken to gaol, after a temporary re- 
moval, under the circumstances of the present case, 
he might perhaps doubt as to a case upon mesne 
process. 

Robert Baldwin, in reply, observed that it was not 
argued that a habeas corpus was at all times neces- 
sary to remove a prisoner for the purpose of giving 
testimony as a witness, or being himself examined 
when accused criminally, but that certainly some 
authority known to the law must be resorted to, 



TRINITY TERM, 8 GEO. IV., 1827. 485 

otherwise the party, he contended, was out of custody- 
while going before a magistrate or any other tri- 
bunal. 

That the question here is, whether voluntary 
escape or not, if the conduct of the gaoler made an 
escape, which he contended it did, he considered that 
the court would discharge the prisoner. 

He further observed there was no distinction be- 
tween mesne process and execution after the return 
of the writ. 

Chief Justice. — Admitting that the conduct of 
the gaoler may have been in this case illegal, the 
court would decide in too summary a manner, upon 
the rights of third persons if they were to discharge 
the defendant. It appears that the processes under 
which he is in custody are legal, and whatever his 
remedy, by action, may be against the gaoler, the 
court do not consider that he ought to be discharged 
upon this summary application. If the gaoler has 
suffered an escape, the court consider that he is 
amenable to the parties at whose suit the defendant 
is in custody, and under the circumstances they can- 
not grant this application. The prisoner was there- 
fore remanded. 

Per CwnaTO.— Application refused. 

Baldwin now applied to the court to commit the 
prisoner to the custody of the sheriff of York, but 
the court refused the application, on the ground that 
the committing prisoners brought up from county 
gaols to the custody of that officer, would be subject- 
ing him to too great a burthen and responsibility. 



486 TRINITY TERM, 8 GEO. IV., 1827. 

Baldwin also objected to the charge of £10 for 
briDging the prisoner up, but it appearing that the 
mileage for bringing the prisoner up and conveying 
him back amounted to that sum, the court decided 
the charge to be reasonable. 

The sheriff of the Home District asked the court 
if he ought to receive the prisoner into his custody 
during his stay at York, without an order from the 
coart. The court replied that the ha. co. was a suf- 
ficient warrant to him, and that it was his duty to 
receive him. 



Baedon" v. Cawdell. 

Where a person had been arrested under a judge's order, the court consid- 
ered it not necessary to make use of the precise words pointed out by the 
provincial statute, authorising arrest. 

Small moved to set aside the arrest in this case, 
upon the ground that the affidavit to hold to bail, and 
upon which a judge's order had been granted, did 
not follow the words of the statute. The words of 
the affidavit were that the defendant was about to 
leave the province as the plaintiff was informed and 
verily believes, whereas the words of the statute are 
that the plaintiff is apprehensive that the defendant 
will leave this province, &c. 

The court observed, that the clause of the statute 
which authorised an arrest under a judge's order, 
had no reference to the clause containing the form of 
the affidavit, and that as it was necessary that there 
should be an order in this case, the strict adherence 
to that form was dispensed with by such order. 

Per Curiam. — Application refused. 



trinity term, 8 geo. iv., 1827. 487 

The King v. Bidwbll. 

To subject a person to the penalty of the 22d Geo. 11., o. 46, for suing out 
process, &o., the attorney allowing his name to be used must be first 
convicted. 

An application was made against the defendant, 
by the Solicitor-G-eneral, for a rule to shew cause 
why an attachment should not issue against him for 
having practised, as an attorney of this court, with- 
out being authorised so to do, and for a contempt in 
abusing the process of this court in discharging one 
White out of execution, without sufficient authority, 
said White having been confined upon a capias ad 
mtisfaciendum at the suit of one Brook, (a) 

It appeared to the court, in respect to the first part 
of the charge, that the defendant had been, for several 
years, acting as the managing clerk of Mr. Daniel 
Washburn, formerly an attorney of this court, and, 
in fact, had in a great measure conducted the busi- 
ness of the office, and of Mr. Washburn's clients; but 
it also appeared from Mr. Bidwell's affidavit that he 
was employed at a salary, and did not participate as 
a partner in the profits of the office. The intention 
of instituting these proceedings was, in some mea- 
sure, to compel Mr. Bidwell to refund to Mr. Mc- 
Lean, the sheriff of the Midland District, a sum 
which he had been compelled to pay in an action for 
an escape, the ground of which was that he had re- 
leased a prisoner in execution by the written direc- 
tion of Mr. Bidwell, as clerk or agent to Mr. Wash- 
burn, such direction being unauthorised and void. 

Sherwood, J., pronounced the judgment of the 
court as follows : 

(a) See the case of Brook v. McLean. 



488 TRINITY TERM, 8 GEO. IV., 1827. 

Application has been made to the court for a rule 
to shew cause why an attachment should not be 
granted against Mr. Bidwell, upon the following ac- 
cusations : 

Firstly. — That he abused the process of this court 
by discharging, without legal authority, a debtor in 
the custody of the sheriff on a ca. sa. 

Secondly. — That being an unqualified person, he 
practised as an attorney of this court by using the 
name of the late Mr. Washburn, who permitted him 
to do so contrary to the statute 22 Geo. II., cap. 46, 
sec. 11. 

With respect to the first accusation, it appears to 
me that the discharging a debtor out of custody, 
without authority to do so, does not constitute a 
criminal abuse ot the process of this court, so as to 
render the agent liable to an attachment without 
some circumstances shewing fraud, deceit, or gross 
imposition. The party injured may resort to a civil 
action. 

As to the second charge, I can find no instance of 
the conviction of a person under the statute 22 G-eo. 
II., who acted merely as the clerk or servant of a 
licensed attorney, at a fixed salary or stipulated 
wages in the ordinary transactions of the professional 
business of his master. 

From a perusal of the statute I am also inclined 
to think that in all charges of the description now 
under consideration, it is necessary, in the first in- 
stance, to convict the attorney who has improperly 
allowed his name to be used by an unqualified per- 



TRINITY Tt!R]Vr, 8 GEO. tf., 1827. 489 

son, before any proceedings can bfe Had against the 
lattfei- ; for if convicted at all, such ilhqtialified per- 
soti nllifet, hf thfe express provision of the statute, bfe 
convicted at the Satne time, or at least upon the 
same complaint and proof which have been previously 
adduced against the attorney himself. 

The ahbient common law rule of principal ahd ad- 
cessat-y, without any relaxation, seems to have beeti 
in the contemplation of the legislature at the time of 
this enactment. 

Mr. Bidwell, in his affidavit, filed in answer to 
the affidavit of the prosecutor, distinctly and posi- 
tively states, that he was not a partner with Mr. 
Washburn, but was hotxafide his clerk or servant at 
a fixed salary, by the year. 

For these reasons, I think, that even a rule nisi 
ought not to be issued. 

Per Curiam. — Application refused. 



Eead v. JoHiirsoN. 

A demand of plea cannot be served before declaration filed, however short 
the time may be. 

Small moved for a rule nisi, to set aside the inter- 
locutory judgment, signed in this case for irregu- 
larity on the ground that the service of the demand 
of plea had preceded the filing of the declaration. 
It appeared that the demand of plea had been 
served upon the clerk of the defendant's attorney in 
the crown office, a few seconds before filing the de-^ 
62 



490 TBINITY TERM, 8 GEO. IV., 1827. 

claration. The counsel insisted on the words of the 
statute, which are " that the plaintiff may after a de- 
claration filed, and service of a copy upon the de- 
fendant, by demand in writing, call for a plea." 

Boulton, Solicitor-General, contra, contended that 
the demand of plea might be served at the same 
time with the declaration, and that the court would 
not notice the very small portion of time which had 
elapsed between the one and the other in this case, 
and would consider the acts as simultaneous, and 
cited Edmonton v. Osborn, and Maxwell v. Skerret. 

The Chief Justice observed that applications 
like the present tended to the discredit of courts of 
justice, but that although a simultaneous service of 
the declaration and demand of plea might be held 
good, yet as it appeared in this case that the de- 
mand had ■ actually been served before declaration 
filed, that the court were bound by the express 
words of the statute. 

Per Curiam. — Application granted. 

The Chief Justice observed that the appoint- 
ment of Mr. Cawdell or any other deputy to perform 
the duties of clerk of the Crown, must be with the 
sanction of the court. 



Keefer v. Merrill, et. al. 

The court will not set aside an arrest upon the ground of irregularity in the 
affidavit to hold to bail after a prisoner has in fact escaped. 

Washburn had obtained a rule nisi to discharge 
the defendants out of custody, upon filing common 
bail, for defects in the affidavit to hold to bail. 



TRINITY TERM, 8 GEO. IV., 1827. 491 

It appearing to the court that two of the defend- 
ants had escaped from gaol some months previous to 
this application, it being in fact made with a view 
to exonerate the sheriff from his liability. 

Per Curiam. — Rule discharged. 

JBoulton, Solicitor-G-eneral, was against the appli- 
cation. 



Davidson Dob ex dem. v. Roe. 

Service upon one of several tenants in possession of the same parcel of land 

is suflcient. 

Boulton, Solicitor-General, applied for a rule nisi 
to set aside the proceedings in ejectment in this 
case, upon the ground of only one of two tenants in 
common having been served with the declaration 
and notice. 

The court referring to the case in Bosanquet v. 
Puller, and observing that the cases, where a ser- 
vice upon one tenant had not been considered as 
sufficient, contemplated the tenants being in posses- 
sion of different and distinct parcels. 

Per Curiam. — Application refused. 



McLean v. Hall. 

A plaintiff cannot arrest a defendant for the amount of purchase money 
paid for an estate conveyed to him by deed, upon the ground that the 
defendant, the vendor, was not lawfully seised, but must resort to his 
covenant and proceed by judge's order. 

The defendant in this case had been arrested up- 
on an affidavit, stating that the plaintiff had pur- 
chased a house from him for £50. That he had 



492 TRINITY TERM, 8, GEO. lY-, W^- 

covenanted th£(,t he was \\\e lawful owner, and law- 
fully seised of tlie property sold ; which, in fact, he 
was not, and that he w^s indebted to the plaintiff in 
£55, by virtue of such covenant, with the usual con- 
clusion. No judge's order had been obtained. 

Macaulay had obtained a rule nisi to set aside the 
arrest. Boultoji, Solicitor-G-eneral, shewed cause. 

Per Curiam. — Rule absolute. 



Stocking v. Crooks. 

An award will be set aside if arbitrators examine one of the parties upon 
oath, they not having been authorised to do so by the submission. 

Eidqut had obtained a rule nisi to set aside the 
award in this case, on the ground that the arbitrators 
had exceeded their authority by receiving evidence 
not warranted by the submission. 

The arbitrators had taken the evideijce of the 
plaintiff upon oath. The defendant, although he did 
not resist this, declined beir^g swojn hir^iself. The 
counsel cited Caldwell on Arbitration, 53, and the 
same work passim; also, 2 Taunton, 254. 

Rule absolute. 



BaSTABLIS and another v. Mow ATT. 

Where a defendant applied for security for costs by afSdavit, dated 22d 
May, and one of the plaintiffs deposed in an affidavit on the 21st June, 
that he was resident at Kingston, where, in fact, he was in gaol, the court 
ordered security. 

The defen(Jaot applied for security for costSi upon 
an apdavit, dated the 22d of May last, stating t,]fL? 



TRINITY TERM, 8 GEO. IV., 1827. 493 

non-residence of plaintiffs within tlie jurisdiction. 
Tlie plaintiffs opposed the application upon an affi- 
davit, stating that one of them was resident in King- 
ston, where, in fact, he was confined in gaol; the last 
affidavit was sworn 21st June. 

Application granted. 



Eansom and Sheldon v. Don-aghub. 

Where a defendant had been arreated by one of two plaintiffs for £18, and 
was afterwards arrested in the name of both for £18 10s., the court or- 
dered the bail bond to be cancelled. 

Macaulay had obtained a rule to shew cause why 
the bail bond should not be delivered up, to be can- 
celled, upon an affidavit stating that the defendant 
had been held to bail in a former action for the same 
debt, at the suit of one of the plaintiffs — the former 
affidavit was for £1 8. The one in the present action 
for £18 10s. 

Eule absolute, with costs. 

Robert Baldwin was for the defendant. 



Smith v. Sullivan. 

The affidavit to hold to bail upon a promissory note must state it to be 

payable. 

Ridout having obtained a rule nisi to discharge the 
defendant from arrest upon filing common bail. The 
affidavit not stating the promissory note upon which 
the action was brought " to be pa^yable." 

Per Curiam.-r-:B>VL\Q absolute. 



494 teinity term, 8 geo. iv., 1827. 

Brown v. Waldron. 

The court ■will not set aside an execution upon the ground that the action 
was commenced in debt and the cognovit given in assumpsit. 

Washburn had applied to the court for a rule nisi 
to set aside the execution in this cause, upon the 
ground that the action had been commenced in debt, 
and the cognovit given in assumpsit. Boulton, Soli- 
citor-Greneral, shewed cause. 

Per Curiam. — Application refused. 



Doe ex dem. Stewart v. Radich. 

The operation of the Statute of Limitations is not suspended by the 59 Geo. 
III., 0. 3 Where twenty years' possession has lollowed a division of ad- 
jacent lots, ejectment will not lie, although the division may have been 
inaccurate. 

The lessor of the plaintiff and the defendant hav- 
ing about iive and twenty years ago received grants 
of adjacent lots, employed a surveyor to run the line 
between them, and, thereupon, divided their lands 
agreeable to such survey, and the defendant made 
considerable improvements on the land so assigned 
to him. It being lately surmised by plaintiff's lessor 
that the survey had been inaccurately made, he em- 
ployed a surveyor to re-survey the land, who having 
surveyed the land anew, according to the directions 
of the provincial statute, for ascertaining and estab- 
lishing boundary lines, 59 Geo. III., c. 3, gave in 
evidence that the old survey was incorrect, and that 
the land on which the defendant had made his im- 
prftvements, in fact, belonged to the plaintiff's lessor 
under the grant from the Crown. 

It was contended at the trial, by the counsel for 



TRINITY TEEM, S^ GEO. IV., 1827. 495 

the defendant, that his twenty years' possession bar- 
red the plaintiff's lessor from an action of ejectment; 
by the plaintiff's counsel that the possession not 
having been adverse, but under a mutual understand- 
ing, arising from the error of the surveyor, that the 
Statute of Limitations was no bar, and even if it had 
been, that the provincial statute establishing meri- 
dian lines gave the plaintiff's lessor a right of entry 
commencing from its passing. The jury found a ver- 
dict for the plaintiff, subject to the opinion of the 
court upon the above points. 

Robinson, Attorney-G-eneral, for the defendant, 
contended, tLat the case was within the principle 
and intention as well as the language of the statute, 
viz., "no person shall make an entry into lands but 
within twenty years next after their right or title, 
which shall first descend or accrue to the same; and 
in default thereof, such persons so not entering, and 
their heirs, shall be utterly excluded and disabled 
from such entry after to be made;" that the intention 
of the statute was if a defendant has been twenty 
years in possession, the claimant shall be barred 
from his entry, and that a person must find as well 
as assert his right in that time. 

That if the mistakes of surveyors were to be con- 
sidered as preventing the operation of the statute, it 
would be almost inoperative in this country. 

That error or mistake should no more prevent its 
operation in cases of ejectment than in those of as- 
sumpsit, trespass, &c. The counsel cited the cases 
of Esson V. Esson, Cook v. Danvers, and Duroura v. 



496 TRlNtTY TERM, 8 GEO. IV., 1827. 

Jones, (a) as determining that where the statute has 
begun to run that its progress cannot be stayed by 
subsequent circumstances. 

Boulton, Solicitor-General, contra, contended that 
the twenty years' possession intended by the Statute 
of Limitations was an adverse possession ; and that 
uuder the circumstances of this case an ouster 
should at least have been found or presumed by the 
jury. 

That the statute did not at any rate bar the plain- 
tiff until he had acquired a right of entry under the 
provincial statute, which directed the manner in 
which lines between lots were to be run. 

The defendant in this action had been in peaceable 
possession of the premises in question, under a dif- 
ferent title from the plaintiff's, for more than twenty- 
five years before the day of the demise mentioned 
in the declaration in ejectment. Each of the parties 
had a deed from the Crown, the one of the east and 
the other of the west half of a lot on the river St. 
Lawrence, and those deeds were issued more than 
twenty-five years before the commencement of this 
action, as before stated. This period of uninterrupt- 
ed occupation on the part of the defendant, under a 
distinct title from the lessor of the plaintiff, since the 
statute of 21 James L, cap. 16, sec. 1 is like a de- 
scent at common law which tells entry, and trans- 
fers the right of possession from the lessor of the 
plaintiff to the defendant, even if the former has the 
legal right of property. Stokes v. Berry 2d, Salk., 

(a) 6 East, 80; 7 East, 299 ; 4 T. R., 300. 



TRINITY TEEM, 8 &E0. IV., 1827. 497 

421. Taylor V. Horde, 1. Burrow, 119. The plain- 
tiff does not claim to come within any exception con- 
tained in the Statute of Limitations, but alleges that 
the provincial statute 59 Geo. III., cap. 14, sec. 12, 
takes his case out of the statute 21 James I. It ap- 
pears to me the provincial statute cited by the plain- 
tiff was made for the express purpose of regulating 
the mode of surveying lands subsequently to the pas- 
sing of that act. I think the legislature intended 
by the 12th section, to give the court an equitable 
power to secure a reasonable compensation to such 
claimants only who are not protected by the Statute 
of Limitations, on account of their possession, since the 
issuing of the king's patent, being less than twenty 
years. To render the Statute of Limitations inopera- 
tive you must shew a repeal of its enactments. This 
has not been shewn. If the lessor of the plaintiff is 
in truth the rightful owner of the premises, he has 
by his own negligence rendered a resort to a higher 
remedy indispensably necessary to obtain his land. 
In my opinion his estate, if he has any, has been di- 
vested and put to a right of property alone. The 
right of possession, I think, is gone. The lessor of 
the plaintiff contends that as no adverse possession 
on the part of the defendant was proved at the trial, 
the Statute of Limitations does not reach his case. 
It appears by the evidence that the defendant held 
under a deed from the Crown, and not under any 
title at all identified, with that of the lessor of the 
plaintiff ; and the lessor of the plaintiff never claim- 
ed any right to the premises till after a lapse of more 
than twenty-five years, during all which time the 
defendant had the king's grant and lawful posses- 
sion under it. Adverse claim or possession as re- 
63 



498 TRINITY TEEM, 8 GEO. IV., 1827. 

lates to either party appears to me to be quite out 
of the question. The plaintiff acquiesced in the de- 
fendant's possession, because he never thought him- 
self the owner of the land, and the defendant never 
disputed any claim of possession on the part of the 
plaintiff, because none was ever made before this 
action was brought. A claim to the possession is 
now made for the first time, and, as I said before, I 
think it comes too late. 

Per Curiam. — Nonsuit to be entered. 



Beaslet v. StEGMA]!?. 

Where ia an action on bond for the performance of an award, the count set 
out the intention of plaintiff's daughter and her husband, the defendant, 
to live separate. That it was submitted to arbitrators to settle the 
amount of an allowance to be paid her in lieu of alimony, &c., upon plain- 
tiff's entering into such security as should be deemed proper to indemnify 
her husband, &c., and that plaintiff should, when the award was made 
known, enter into such security. That the condition of the bond was to 
pay defendant's wife what should be awarded upon plaintiff entering into 
such security — assigning for breach, (without stating that the award had 
fixed the nature or amount of the security,) that the award had fixed the 
allowance at £50, payable quarterly, thenceforward, commencing from 
the day of her departure from her husband, the defendant, (a day, in 
point of fact antecedent to the submission,) averring that plaintiff did 
afterwards by his deed, &c., covenant to indemnify, &c., that although 
plaintiff afterwards tendered said covenant, and exhibited the bond and 
award, (without any profert of the covenant,) and demanded the sum, to 
wit, £62 10s., being one year and one quarter from the 6th of Septem- 
ber, 1822, being the day of the separation, &c., (a day antecedent to 

» the submission, ) due on the award — refusal of payment — was held good 
upon a special demurrer objecting to it as inconclusive, having a retro- 
spect not warranted, and wanting profert of the covenant. A second 
count omitting the statement of notice of the award and a request to pay, 
also held good A third count assigning for breach, that plaintiff offered 
to enter into any security as might be deemed proper to indemnify, &c., 
yet that defendant refused to accept any thing at all therein, (without 
stating a tender of a covenant,) also held sufiicieut, upon the ground that 
defendant's refusal to accept any thing at all discharged the plaintiff 
from making such tender. 

Debt upon bond for performance of award. The 
first count of the declaration set out : first the sub- 
mission, viz.: — that differences had arisen between 



TRINITY TERM, 8 GEO. IV., 1827. 499 

plaintiff's daughter and her husband, the defendant, 
their intention to live separate, and that defendant 
should make her an allowance upon the plaintiff's 
entering into such security as should be deemed pro- 
per to indemnify defendant against further claims on 
the part of his daughter ; and that the plaintiff and 
his daughter had agreed to leave the amount of the 
allowance to be settled by arbitrators, who should 
fix the amount and times of payment, .&c., that plain- 
tiff when said award was made known, should enter 
into such security as should be deemed proper to in- 
demnify defendant, &c. 

Secondly, the condition, &c., to perform the award 
of the arbitrators, and to pay defendant's wife such 
sums as should be awarded her upon the plaintiff 
entering into such security as aforesaid. 

And then assigned for breach : that the award 
had fixed the allowance from the defendant to his 
wife yearly, at the yearly sum of fifty pounds, pay- 
able quarterly thenceforward, commencing from the 
day of her departure from her said husband, &c. And 
that although plaintiff did afterwards by his certain 
deed under his hand and seal, in consideration of the 
said provision, &c., covenant that defendant's wife 
should not molest him, &c., or institute any suit for 
alimony, &c., and referring to the deed. And that 
although plaintiff afterwards, &c., tendered and of- 
fered to defendant the said covenant, and requested 
him to accept the same, and exhibited the aforesaid 
bond and also the award, and demanded the sum, 
viz.: £62 10s., being one year and one quarter from 
the 6th of September, 1822, being the day of the se- 



500 TRINITY TERM, g GEO. IV., 1827. 

paratioa of the defendant and his wife, due on said 
award ; yet defendant refused to accept the covenant 
or pay the amount, &c. 

The second was similar to the first, omitting the state- 
ment of the request to defendant to accept the cove- 
nant, and also the exhibition of the liond and award. 

The third count similar to the others ; but assign- 
ing for breach that plaintiff offered to enter into any 
security as might be deemed proper to indemnify, 
&c., and that although a large sum was due under 
said award, to wit, £62 10s., &c., yet the defend- 
ant refused to accept any thing at all therein, where- 
by he discharged the plaintiff from giving any secu- 
rity — request and refusal of payment. 

Demurrer — assigning for causes — 

To the first count — that it appears thereby, that 
defendant was bound to pay the sum awarded, &c., 
upon the plaintiff's entering into such security as 
should be deemed proper, &c., and that it is not 
stated in the said first count what security it was 
deemed proper the said plaintiff should enter into, 
or that defendant had deemed the covenant therein 
alleged to have been made and tendered, to be such 
security as it was proper the said Beasley should 
enter into, and that it does not appear that the 
plaintiff-ever did enter into such security as was re- 
quired before defendant could be legally called upon, 
according to the condition of his said bond, to pay 
the sum awarded, and consequently that it does not 
appear by the said count that the plaintiff at the 



TRINITY TEEM, 8 GEO. tV., 1827. SOl 

time of commencing his action was entitled to claim 
any sum under the award. 

That according to the obvious intent, &c., of the 
bond and condition, it was submitted to the arbitra- 
tors, and they ought to have awarded the proper se- 
curity — and that as it appears by the said first count 
that they did not do so, the award is inconclusive 
and void. 

That plaintiff has not made profert of the sup- 
posed deed or covenant, whereby defendant might 
have had oyer ; it not appearing that said covenant 
is in existence. 

That said award directs that a yearly allowance 
of £50 shall be paid by defendant to his wife quar- 
terly thenceforward, commencing from the day of 
her departure from her said husband, &c.; but that 
it is not stated at what time she did depart, &c., or 
that she ever did depart; therefore void for un- 
certainty. 

That the award, as set forth, directs a sum of 
money to be paid as an annual allowance to com- 
mence from a day antecedent to the said award or 
to the bond of submission of the defendant set forth 
— whereas the bond and the condition recite an in- 
tention to live separate thenceforward, and submits 
to the said arbitrators what allowance shall be paid 
on account of such separation, and for no other thing; 
wherefore arbitrators could not legally award any 
allowance to accrue from a period antecedent to said 
submission; and that they have named a day for the 
commencement of said allowance, on which they had 



502 TRINITY TERM, 8 GEO, IV., 1827. 

not power to make the said allowance commence, and 
that no day being named, &c., except by reference 
to a period to which the power of the arbitrators did 
not extend, the award is altogether null smd void. 

That no period is mentioned when the annual 
allowance is to cease; wherefore the award is alto- 
gether uncertain, inconclusive and void. 

To the second count the same objections as to the 
first, and that it is not stated therein that the defen- 
dant had any notice of the award; nor is it averred 
that he was requested to comply with the same. 

To the third count. 

That the arbitrators have not awarded the nature 
of the security, as objected to the first count. 

That it sets forth the award as directing a sum of 
money to be paid, commencing from a day antece- 
dent, as objected to the other counts. 

That no period is stated when the allowance is to 
cease. 

That no notice is stated, as in the objection to the 
second count. 

Joinder. 

Robinson, Attorney-G-eneral, in support of the de- 
murrer, observed, that it was absurd to suppose that 
the plaintiff could get rid of the covenant alluded to 
in the pleadings by tendering his own deed. 



TRINITY TEEM, 8 GEO. IV., 1827. 503 

That a party cannot be said to give security, unless 
he gives something more than his own personal lia- 
bility. 

That the giving security was a condition prece- 
dent, before completing which the plaintiff's right of 
action did not accrue. 

That it was the duty of the arbitrators to have 
qualified the uncertain and general terms in the sub- 
mission, by pointing out the nature and security, 
which was the evident intention of the parties, and, 
without doing which their award was useless. 



-"■a 



In support of these observations the counsel cited 
the authorities below, (a) 

That it was the fair interpretation of the submis- 
sion that the award was not to have a retrospective 
operation, but which the arbitrators have given it. 

That admitting such was the intention of the par- 
ties, the awarding an allowance from the time of the 
departure of defendant's wife, left the allowance un- 
certain and subject to future litigation. 

That the award wanted mutuality in directing one 
party to pay to the other fifty pounds annually, with- 
out any equivalent. 

That the want of profert of the covenant tendered 
was also a ground of demurrer, for, that a plaintiff 
must bring into court any deed which contains a con- 
dition precedent, to be performed upon his part, be- 

(a) 2 Mod. 272 ; Strange, 1024. 



504 TRINITY TERM, 8 GEO. IV., 1827. 

fore doing which he acquires no right of action, (a) 
and this to enable the defendant to judge as well of 
its due execution as of its sufficiency. 

That the omission of a period at which the allow- 
ance was to cease was also an objection to the award. 

He observed, upon the third count, that the gen- 
eral averment, that they tendered any security the 
defendant should deem proper, was objectionable; 
for that the nature and quantum of the security was 
not more within the decision of the defendant than 
within that of the plaintiff, but should have been 
settled by the arbitrators; and that want of an aver- 
ment of notice of the submission and award was bad, 
and that no precedent could be found to sanction 
such an omission. The counsel also cited the autho- 
rity below, (b) 

Macaulay, in reply, contended that the submission 
to pay such allowance as should be awarded, gave 
the arbitrators a retrospective power, and that 
although they had not named a day from which it 
was to commence, yet having named the annual sum 
to be paid was sufficient, and that it was unreasonable 
to expect that they should name a time of departure, 
as in fact there had been several. 

That it was no part of the duty of the defendant 
to tender the sum awarded and demand sufficient 
security; and if it was not given, he had a right of 
action. The counsel cited the authority below (c) to 
shew that the party to whom a deed is to be made, 
must show what he wants. 

(a) Lord Raymond,776 ; Croke Eliz. 212 ; Com. Dig. Pleader. (J) Strange, 
432. (c) 1 Ventris, 195. 



TRINITY TEEM, 8 GEO. IV., 1827. 505 

That had a security been referred to the arbitra- 
tors, there might be some ground for objection to 
their award if they had neglected to ascertain it. 

The giving the security, he contended, was not a 
condition precedent; but, that the plain intention of 
the arbitrators was to leave the defe^idant to his ac- 
tion if proper security was refused. He cited the 
authorities below, (a) ' 

Observed further, that the second objection was 
involved in the first, the true question being whether 
it was necessary for the arbitrators to establish the 
security. 

That the want of profert was a matter dehors the 
award, and might be amended if necessary: admitted 
that if a party claimed under a deed he must make 
profert, but that the deed in question was induce- 
ment only, and, indeed, no deed until delivery. 

Compared it to a deed tendered by a vendor at a 
sale who never made profert of it, in an action to 
compel a completion of the purchase. 

As to the uncertainty of the day of departure, he 
observed that the fact itself was admitted by the 
submission. That in awards, that is certain which 
can be made so, and it was the object and intention 
of courts of justice to uphold and establish rather 
than to overturn them by nicety of construction, (a) 

Upon the objection of want of mutuality, he did 



(a) Com Dig. Arbitrator, B ; Caldwell, 95-8 ; Saunders, 189 ; 1 Burr., 
278, (a) Caldwell, 114, 19, 144, 94; 2 Wilson, 267; 2 Saunders, 62. 

64 



506 TRINITY TEEM, 8 GEO. IV., 1827. 

not consider that it applied ; but, at any rate, a re- 
lease might be considered as intended. 

Upon the want of notice, as objected to the third 
count, he considered notice as unnecessary, unless it 
had formed a part of the submission ; and that de- 
fendant had discharged the plaintiff from tendering 
any deed by his general refusal as set out in the 
first count. 

And further observed, that if there was any thing 
in the objection made to the award having a retro- 
spect, that the words having that effect might be re- 
jected as surplusage ; and its operation might be 
considered as bounded by the term " henceforward." 

Attorney -General, contra, observed that words 
much more loose than those in the submission had 
been considered as making a condition precedent, 
which could not be got rid of by the party to be 
charged ascertaining the security. 

That if the arbitrators had authority to award re- 
trospective payments, some period should have been 
stated for their commencement, which not having 
been done leaves the award uncertain and nugatory; 
and if they had not power to do so ' they have ex- 
ceeded their authority, which equally vitiates the 
award. 

Further, that whenever a tender of a deed is ne- 
cessary, a profert is necessary. 

As to the anxiety &f the courts to support awards, 
he observed that that anxiety was shewn only in 



tolNITY TERM, 8 GEO. IV., 1827. 507 

cases where it was attempted to impeach the justice 
of a perfect award, not where it was uncertain and 
inconclusive. 

Sherwood, J., in pronouncing the judgment of the 
court, made the following observations. — After peru-i 
sal of the pleadings in this case, I am of opinion that 
no one of the special causes of demurrer is tenable 
which the defendant has assigned against the several 
counts in the declaration. The only question, there- 
fore, which remains to be determined is, whether 
the plaintiff has done every thing on his part, re- 
quired by law to enable him to support an action for 
the non-payment of the money awarded. The first 
two counts in the declaration are precisely similar 
in principle, and may, therefore, be considered to- 
gether. The statement of the plaintiff's case, in 
these counts, clearly shews it was necessary for him 
either to give security to the defendant, or to offer 
to do so, before he could legally call upon him for the 
payment of the money. Now has he not tendered 
security ? The defendant by his pleading has not' 
disclosed any objection to the security itself, or to 
the written instrument by which he proposed to per- 
fect the security. The defendant contented himself 
with barely refusing the security without assigning 
any reason for such refusal, and, therefore, it must' 
be presumed that he had no good objection to it'. 
What more could the plaintiff do ? It was out of his 
power to compel the defendant to accept security. 
If the defendant thought the security insufficient he' 
should have said so, and then the plaintiff must have 
tendered better security, or stated' his right to re- 
recover the money on the one already offered. The^ 



508 TEINITY TERM, 8 GEO. IV., 1827, 

defendant, however, chooses to be wholly passive, 
and trust to the failure of performance of what was 
necessary to be, done by the plaintiff. In this, I 
think, he has been mistaken, and that thfe plaintiff 
has gone far enough to support his action on these 
two counts. 

The third and last count in the declaration, after 
setting out the bond upon which the action is 
brought, together with the award of the arbitrators, 
contains an averment that the plaintiff offered to 
give any security as might be deemed proj)er, with- 
out alleging the tender of any draft of a deed or 
other instrument to perfect the security to the de- 
fendant. 

The plaintiff then further avers that the defendant 
wholly and absolutely retused to accept of any 
security. 

The question on this count, therefore, is, whether 
the plaintiff should have gone further and tendered 
the draft of a deed to compensate the security to the 
defendant. In the case of Jones v. Barkley, a draft 
of an assignment was tendered by the plaintiff to the 
defendant; but I think the decision there did not 
turn on that point. Lord Mansfield said in that case, 
" the party must shew he was ready; but if the other 
stops him on the ground of an intention not to per- 
form his part, it is not necessary for the first to go 
farther, and perform a nugatory act." 

In the present case the plaintiff offered to give any 
security that might be deemed reasonable ; upon 



TRINITY TERM, 8 GEO. IV., 1827. 509 

which the defendant absolutely refused to accept of 
any security at all ; and at the same time, wholly 
refused to pay the money awarded by the arbitra- 
tors. It is contended by the defendant, that the 
plaintiff should have gone on and tendered a draft of 
a deed as stated in the first two counts. It appears 
to me, however, that such an act would have been 
perfectly nugatory and idle after the broad refusal 
of the defendant to accept any security at all, or to 
pay any money. It is true, that unless there is a 
discharge from the other party going further, the 
plaintiff must take every step necessary for him to 
do, in which the defendant's concurrence is not re- 
quisite, before he can avail himself of a refusal by 
the defendant. In the case now before the court, I 
think the words and conduct -of the defendant, as 
stated in the third count, amounted to a discharge to 
the plaintiff from executing any security at all to the 
defendant, on the ground of the intention of the 
latter never to pay the money awarded by the arbi- 
trators. 

The defendant in effect says to the plaintiff, that 
he need not give himself any further trouble, for no 
security would be accepted which he could by any 
possibility offer. 

' In my opinion the plaintiff is entitled to judgment. 

Per Curiam. — Judgment for the plaintiff. 



510 trinity term, 8 geo. iv., 1827. 

Doe ex Dbm. Moffat v. Hall. 

It seems that a conveyance from the sheriff by deed under seal is necessary 
to complete a vendor's title to lands sold under the provisions of the 5th 
Geo. II. That the return upon the fi. fa, cannot be considered as a mode 
of giving such title. Nor can such vendor take a title by act and opera- 
tion of law alone. That a neglect on the part of the sheriff to advertise 
the property sold, would not defeat the vendor's title ; and although the 
land may be knocked down to the agent of a; firm, the deed of conveyance 
may be afterwards made by request of the partners conveying to any in- 
dividual of the firm. 

This was an action of ejectment tried at the as- 
sizes for the Johnstown District, and a verdict for 
the plaintiff. The action was brought upon a sheriflf's 
deed by which he assigned to the plaintiff's lessor 
25,000 square feet of land with storehouse, buildings, 
&c. It appeared in evidence that 5000 feet of the 
land in question had not been included in the de- 
scription of the premises inserted by the sheriff in 
the public advertisement for the sale, but the frame- 
house, store and premises, which were in fact in- 
cluded in the 5000 feet omitted, had been mentioned 
in the advertisement. The premises had been knock- 
ed down by the sheriff to one McCarley, who acted 
at the auction as agent to Moffat and Company, who 
were plaintiffs in the action under which the pre- 
mises had been sold under 6th G-eo. TL, at £752, a 
sum considerably exceeding the value of that part of 
the land which was not occupied by the house, &c., 
which the defendant held under a separate deed, but 
which was intended to be comprised in the sheriff's 
advertisement. The sheriff forthwith made a deed 
of the 20,000 feet, more or less, and the store, frame- 
house, &c., thereon erected, to Moffat, the plaintiff's 
lessor, who took the same for the benefit of himself 
and his co-plaintiffs in the action, but who, finding 
a few days after the sale, that the 20,000 feet did 
not include the house which had been advertised, 



TRINITY TERM, 8 GEO. IV., 1827. 611 

applied to the sheriff, who, upon his representation 
and receiving indemnity, executed a second deed 
comprising the whole 25,000 feet. It was intended 
by the sheriff to advertise the whole of defendant's 
premises, situate in Brockville ; his mistake arose 
from the circumstance of defendant's holding his pre- 
mises under two deeds, one including the 20,000 
feet, the other 5,000, on which the store and frame 
house were erected. The defendant insisting that 
the house, &c., were not comprised in the advertise- 
ment, sheriff's sale, or first deed, and that he had no 
right to execute a second deed varying both from 
the advertisement and the first deed, kept possession, 
upon which the action was brought. It was in evi- 
dence by McCarley, the agent, at the trial, that he, 
as well as all persons present at the auction, under- 
stood that the whole of Hall's premises were under 
sale. 

BouUo)i, Solicitor-Greneral, having obtained a rule 
7iisi for a new trial objected — 

Firstly. — That the sheriff could not legally execute 
a deed to plaintiff's lessor alone, that the deed should 
have been made to the whole firm in whose name 
ih.efi.fa. had issued. 

Secondly. — -That having executed one deed he 
could not execute another. And, 

Thirdly. — That the plaintiff's lessor can only take 
the premises mentioned in the advertisement, viz., 
the 20,000 feet, the sheriff not having any power to 
include any thing not therein clearly comprised, he 



512 TEINITY TERM, 8 GEO. IV., 1827. 

being after the sale, functus officio, and the sale and 
not any subsequent deed, being the act which gave 
purchasers at sheriff's sales their title. 

RoUnson, Attorney-G-eneral, shewed cause. — He 
stated the principal question to be whether the 
buildings which, in point of fact, were erected on the 
5000 feet oniited in the advertisement, could be con- 
sidered as included in the general words more or 
less. He contended as to the first objection, that it was 
immaterial as far as respected the defendant whether 
McCarley, the agent, was the actual purchaser for 
the whole firm or any individual of the house of 
Moffat & Co., for the appointment of an agent was 
legal and proper to prevent property being unfairly 
enhanced, if the real purchaser was known ; and no- 
ticed that it was the practice in this country for one 
partner of a firm to take an estate in the manner 
practised on this occasion for the purpose of more 
conveniently turning it into money for the benefit of 
the firm. 

As to the second objection, he contended that if 
the whole premises were embraced in the first deed 
under the more or less, the house having been also 
mentioned, that such first deed could not be invali- 
dated by the second ; that if the first did not by its 
general words include the whole of it, that the omis- 
sion of the exact number of feet was well supplied 
by the second deed, which could not be vitiated by 
the first. 

As to the third objection, viz., that plaintiff's les- 
sor must stand or fall by the advertisement, he con- 



TRINITF TEEM, 8 GEO. IV., 1827. 61-3 

tended that the advertisement having noticed the 
house and buildings, which where situated on the 
small adjacent lot of land, was sufficient to include 
the whole property, as it appeared in evidence that 
it was understood by all parties at the sale that the 
whole property was intended to be included ; and 
<hat if this was not the case, either the first deed or 
the second deed included the whole ; that no adver- 
tisement for sales could be so correctly drawn or so 
exact as not to leave room for a consideration of the 
intention of the parties. 

That the advertisement was a mere formality, re- 
quired by the statute, and although the sheriff might 
be liable to a defendant to the amount of any injury 
which he might have sustained by irregularity in 
the advertisement ; yet, if there was a fair sale the 
purchaser could not be affected, for that the statute 
was merely directory. And he instanced the cases 
of attorneys-at-law, returning officers, and convic- 
tions by justices, where, though the former had taken 
out no license or the latter had erred, yet their acts 
would be considered valid. 

That if the correctness of the advertisement was 
essential to support a purchaser's title, there would 
be no purchasers, from the great difficulty of sus- 
taining an ejectment to enforce possession. 

That the jury have, in this case, determined the 
iatention of the parties, and rendered that certain 
which was before uncertain ; and it being pl^iin tha,t 
the justice of the case was with the plaintiff, the ver- 
dict Should remain with him, and defeadant resort 
:to an ejectment in his turn. 
65 



514 TRINITY TERM, 8 GEO. IV., 1827. 

Boulton, Solicitor-General, contra, premising that 
that question was one of strict law, contended, that 
the only mode of designating or pointing out the pro- 
perty to be sold was by reading the advertisement, 
as was done, for the property itself was out of view. 
And the same being an advertisement of 20,000 feet, 
was purchased by the agent, Mr. Carley, who imme- 
diately received possession. That the rule of caveat 
emptor must apply, the purchaser should have in- 
spected the property. 

He asked, that if, as has been contended, the ad- 
vertisement for 20,000 feet could pass the 25,000, 
and so include the houses, why did not the plaintiff's 
lessor bring his action for the 20,000 feet ? 

That the proper question for the jury to have de- 
cided was, whether the second deed was not tauto- 
logical; that deeds must be made so as to embrace 
the quantity of land intended to be transferred, and 
cannot be enlarged by the ipse dixit of all the people 
in Brockville. 

That whether the conduct of the defendant was 
strictly honourable or otherwise, it was not his busi- 
ness to point out the property to the sheriff, such 
conduct can scarcely be expected from a person so 
situated. 

After premising the importance of having the mode 
of selling freehold lands under writs o^fi.fa., under 
the 6th Geo. II. clearly understood. To shew that 
the sheriff's deed was inoperative, the counsel ob- 
served, that in the manner at present practised it 
could not be considered as a bargain and sale, as it 



TRINITY TERM, 8 GEO. IV., 1827. 515 

wanted the principal requisite, viz., seisin by the 
bargainor, for the sheriff never took possession, and 
the advertisement could not give him seisin. That 
if the sheriff was seised he could put the purchaser 
into possession, which was never attempted, and 
which he could not do even in case of a chattel in- 
terest, Mr. Justice BuUer merely hinting in the case 
cited that it might. 

That there was no reason to distinguish the sale 
of lands in this country from the mode practised in 
England by elegit, and that if a deed was necessary 
in this country, it would be more so in those proceed- 
ings, for though the lands extended under that pro- 
ceeding were a chattel in the hands of the plaintiff, 
they were in nature of a freehold. Mr. Justice 
Sherwood observed, that lands extended in England 
were so done by inquisition, and differed most mate- 
rially from lands sold hj fi.fa. in this country, which 
became an absolute property; whereas those extended 
were returned to the debtor after ihe debt was satis- 
fied. The counsel observed, that he thought an in- 
quisition should be had in this country, that the pur- 
chaser's title might commence by record. Mr. Jus- 
tice Sherwood observed, that he considered that mode 
of proceeding would not answer the exigency of the 
statute. 

The counsel further observed, that the sheriff had 
a mere qualified property sufiicient only to excuse 
him from being a trespasser. That if he was in pos- 
session he should give an account of the rents and 
profits, but that in point of fact he always left the 
owner in possession to contest the title of the pur- 
chaser for years. 



516 TRINITT TERM, 8 GEO. IV., 1827. 

With respect to tbe statute under which real pro- 
perty was sold, he observed, that its language, viz.: 
" That real estate should be subject to the like reme- 
dies for sdizing and selling it, &c.," which he con- 
strued to be by inquisition. To an observation from 
the court that commissioners gave deeds, he observed, 
that such commissioners were authorised by statute, 
pointing out the particular deeds they were to give, 
which thoy could not depart from. 

The counsel concluded by insistingthat the sheriffs 
deed was of no validity; that if it was objected that 
without a deed the sale could not be perpetuated, he 
considered that it might be effectually done by the 
sheriff making a return on the writ oi Ji. fa., of the 
whole transaction, which return he should consider 
as more efficient, at a trial of nisi prius, than an 
authorised deed, and. 

He further contended, that the property having 
been knocked down to McCarley, the agent at the 
sale, the sheriff was then functus officio, and could 
not transfer the property by deed or any other 
means, to any other person, distinguishing his autho- 
rity from that of an auctioneer. 

Robinson, Attorney-General, being required, by 
the court, to speak to the Solicitor-G-eneral's objec- 
tions, on the ground of the sale being the only effi- 
cient act of the sheo-iff, observed, 

That there was no law to compel the sheriff to sell 
by auction,; that he might sell privately, even after 
a bidding at auction, and his sale would be good, and 



516 TEINITT TERM, 8 GEO. IT., 1827. 

With respect to the statute under which real pro- 
perty was sold, he observed, that its language, viz.: 
" That real estate should be subject to the like reme- 
dies for stizing and selling it, &c.," which he con- 
strued to be by inquisition. To an observation from 
the court that commissioners gave deeds, he observed, 
that such commissioners were authorised by statute, 
pointing out the particular deeds they were to give, 
which they could not depart from. 

The counsel concluded by insisting that the sheriff's 
deed was of no validity; that if it was objected that 
without a deed the sale could not be perpetuated, he 
considered that it might be effectually done by the 
sheriff making a return on the writ oi fi. fa., of the 
whole transaction, which return he should consider 
as more efficient, at a trial of nisi prius, than an 
authorised deed, and. 

He further contended, that the property having 
been knocked down to McCarley, the agent at the 
sale, the sheriff was then functus officio, and could 
not transfer the property by deed or any other 
means, to any other person, distinguishing his autho- 
rity from that of an auctioneer. 

Robinson, Attorney-General, being required, by 
the court, to speak to the Solicitor-Greneral's objec- 
tions, on the ground of the sale being the only effi- 
cient act of the sheriff, observed. 

That there was no law to compel the sheriff to sell 
by auction; that he might sell privately, even after 
a bidding at auction, and his sale would be good, and 



TRINITY TERM, 8 GEO. IV., 1827. 617 

considered him in that respect in the same situation 
as an attorney or trustee ; that no memorandum of 
a bidding at auction could set aside a deed under 
seal, (a) The counsel compared his sales also to those 
of masters in Chancery in England, which were not 
unfrequently superseded and a deed made to another 
person than the purchaser at auction. That the sales 
of freehold, in this country, were little analogous to 
the extent under an elegit in England, which con- 
veyed no title, and the mode of conducting which was 
derived from a statute, (b) That there was no absur- 
dity in considering the sheriff's deed as a bargain 
and sale. 

It must be executed by persons in possession or 
having authority. 

In this country it is commonly done by persons 
who are not in possession, and who frequently have 
never been in the country. 

That the 6th G-eo. II., which makes lands goods, 
gives the sheriff a sufficient title. He would ask 
whether, if after the sheriff had seized lands, he could 
not bring an action against persons pulling down 
houses, cutting down timber, &c. 

That it could not with any shadow of reason be 
asserted, that a sheriff after an action of freehold 
lands was fu7ictus officio, — that clearly here as after 
the sale of a term for years in England, he must 
complete his sale by a competent conveyance, a form 
of deed proper for the subject matter — in the case of 
a chattel interest, by an assignment, in the case of 
freehold by grant or other competent deed. 

(a) 5 Mod., 376. (6) Westminster, 2d. 



618 TRINITY TERM, 8 GEO. IV., 1827. 

The 5tli Geo. II. requires the sheriff to seize and 
sell, certainly to proceed to sale, and to complete the 
sale according to the subject matter; he stands in 
some situation as an attorney, and conveys the whole 
interest of his principal, whatever it may be; that 
there may be special reasons for commissioners of 
bankrupts or other public authorities being directed 
in their mode of conveyance, but it is a most illogical 
Inference to say, that because the act of Geo. II. has 
authorised sheriffs to sell, that they shall not convey. 

That the form of conveyance, namely, that of a 
bargain and sale, has been the original and constant 
practice in this province, and has always been given 
in evidence and recognised at nisi prius. That there 
is no authority for a sheriff to make a special return 
to his fi. fa. Any other return, than that he had 
made the money, would be nonsensical. He makes 
a special return of the lands he has extended upon 
an elegit, because he is specially required by the 
writ so to do, and the term extent is only used in the 
statute to secure the debts of the Crown. The coun- 
sel cited the cases below (a) to shew that terms for 
years were transferred by sheriffs, in England, by 
deed, viz., by assignment. 

That the Statute of Frauds requiring all assign- 
ments of land (except leases for three years) to be 
in writing, makes it necessary for the sheriff to as- 
sign lands by instrument in writing, and the sheriff's 
deeds of this country are, in point of fact, assign- 
ments, by the name of whatever species of convey- 
ance they may be designated. 

(a) 5 B. & A. 243 ; 1 B. & P. 506 ; 3 T. R. 295. 



TRINITY TER5I, 8 GEO. IV., 1827. 519 

They rwist be signed by the party or his agent, 
and, to this purpose, the sheriff is the agent by the 
operation of law. 

That the 5th Geo. TL, putting real property in the 
colonies upon the same footing with chattels, autho- 
rises the sheriff to assign it as he conveys chattels, 
in England, by bill of sale. 

That sheriff's titles are included in the Registry 
Act of this province, and that if some competent deed 
was not registered agreeable to its provisions, a pur- 
chaser would be liable to lose his property, for he 
cannot register aji. fa. 

That his situation is analogous to that of executors 
who sell land to pay debts if a testator will that 
his land be sold to pay debts. The executors sell, 
although they have no express authority or estate 
granted to them, so the sheriff is authorised by act 
of parliament to sell. 

That the true reason why the statute did not point 
out any particular mode of conveyance is, that in 
different colonies different modes of conveyance might 
be adopted or required, as their laws took their 
origin from different sources. 

The English law is adopted here, and, therefore, 
we use an English form of conveyance, namely, that 
of a bargain and sale. 



'&•" 



Bouhon, Solicifor-G-eneral, contra, observed, that 
he did not mean to contend that deeds were alto- 
gether useless atid void, and not to be executed; but 



520 TRINITY TERM, 8 GEO. IV., 1827. 

that they amounted to nothing more than an ^evidence 
under seal of what the sheriff had transacted at the 
sale. That the cases cited of sales by attorneys or 
others were not in point. Attorneys proceeded by 
deed from the principal pointing out the extent of 
his authority, and the particular estate he was to sell. 
An auctioneer merely sold, but could not convey; in 
cases of second sales, the first was not completed by 
deed, and was in fact no sale. To make a parallel 
case, you should shew a sale to A. and a conveyance 
toB. 

That sales by masters in Chancery are not analo- 
gous; they never gave deeds, but the principal, the 
master having no interest any more than an auc- 
tioneer has. 

The sheriff has only a special property in goods 
and chattels, until he can sell and return his writ, 
and can have no other in freeholds in this country, 
converted into chattels by operation of the statute; 
when once he sells, his special property is totally at 
an end, even if he quits the possession of chattels 
after seizure, and the defendant retakes them and 
sells, the sheriff cannot recover from the purchaser. 

The power, if such exists, for the sheriff to bring 
actions for injuries to freehold property, shews no 
possession, for the owner of goods may bring tres- 
pass for injuries or asportations to goods, which he 
has never possessed. If property is in execution 
and afterwards an extent comes before sale, the ex- 
tent shall be preferred; (a) which cases shew that 

(a) 1 Leeming, 282 ; 1 T. R. 780 ; 16 East, 254, 278 j Blades and another' 
V. AriuKlall( 1 M. & Si 797; 



TRINITY TERM, 8 GEO. IV., 1827. 621 

the property is not altered by the sheriif's seizure 
either in lands or goods. 

The counsel observed that it was the duty of the 
sheriff, under aj^. fa. against lands, to go upon the 
lands and take possession b^ a twig, turf, &c. [Mr. 
Justice Sherwood asked whether the sheriff's deed 
stated that he had seized and taken the land into his 
possession.] The counsel observed, that that was 
not the case. He further observed, that the sheriff 
ought to leave a bailiff in possession. 

The counsel further contended, that from the vari- 
ous definitions of title given by Blackstone, sheriffs' 
titles in this country must be considered as titles by 
record or none at all, for they come under no other 
definition. That the only titles mentioned are those 
by record, by descent, by deed, or by devise; that 
the sheriffs do not agree with the description or re- 
quisites of any deeds mentioned in the law authori- 
ties; therefore, if their titles are not by record, they 
are no titles at all, unless we can invent some fifth 
sort of title, not hitherto recognised. 

That the only title a sheriff can give is a title by 
sale at auction, and his assignment or bill of sale are 
only evidences of what he must have previously sold 
there, in a correct and proper mode. That in the 
present case, the sheriff having sold by auction under 
5th G-eo. II., he was, for the reasons stated, functus 
officio ,the moment the hammer was down, and the 
purchaser was entitled to the property if he paid the 
money, and the sheriff could neither sell to another 
or change the exact quantity or species of property 

sold. 

66 



522 TRINITY TERM, 8 GEO. IV., 1827. 

The counsel further observed, that the sheriff had 
no property in the thing sold, or it would be liable 
to his debts, &c., (upon the Chief Justice observing 
that no body supposed he had more than a special 
authority,) he continued, that he then could not have 
such a property as could raise a trust or give pos- 
session, {a) That the bankrupt laws were in point, 
although they authorised a sale, yet it was found 
necessary to point out the particular mode of con- 
veyance. That where estates are created by opera- 
tion of law, as by elegit, license of occupation, &c., 
the sheriff gives possession, but he is a mere conduit 
pipe to effect the intention of the law. 

Under statute G-eo. IT. he is not required to do 
so. Further, he contended, that the sheriff could 
not convey, by bargain and sale, for he could not 
seize an equitable estate, {b) which is all that passes 
by bargain and sale. 

As to the necessity for a deed by the sheriff, he 
observed, that there was none; that he was not com- 
pellable to give one, and, therefore, should not do it. 
And if so it could not be necessary that a purchaser 
should receive it. 

The case cited can only mean that he need not, 
not that he ought not to return the writ Ji. fa. 

He concluded by observing the great variance be- 
tween the advertisement and the deeds. The adver- 
tisement contained only one town lot, whereas the 
property contended for was two town lots, as appeared 

(a) Showers, 87. (6) 8 East, 466. 



tUlNtTY TERM, 8 GEO. IV., 182t. 523 

by the diagram in evidence. They were subject to 
separate assessments, and that it was unreasonable 
to suppose a separate estate could be included under 
the terms "more or less," even if the deed could 
have any effect as separated from the advertisement 
and sale by auction, which he contended it could not. 

Sherwood, J., pronounced the judgment of the 
court. 

The defendant has taken several exceptions to the 
plaintiff's right of action in this cause; but it seems 
to me that the determination of the three following 
objections will be sufficient to set aside or establish 
the verdict: 

Firstly. — 'Whether the knocking down of any lot 
of land to the highest bidder at public auction by the 
sheriff transfers the estate therein to the bidder ? 

Secondly. — Whether the 6,000 feet of land in dis- 
pute were offered to sale, and in fact sold by the 
sheriff ? 

Thirdly. — If the last mentioned land was sold, 
whether the estate in the same was vested in the 
lessor of the plaintiff and his co-partners in trade ? 

The first statute of the provincial parliament of 
Upper Canada, passed in the 32nd of Geo. III., in- 
troduced all the laws of England into this province, 
relative to property and civil rights. At the same 
period the statute 5th Geo. II., chap. 7, which ren- 
ders lands, liable to the payment of debts, began to- 
be acted upon in this country. For seventeen years 



524 TKINWY TERM, 8 GEO. IV., 1827. 

afterwards the provincial legislature passed no law 
to direct the sheriff to advertise lands or goods be- 
fore he proceeded to sell them. And, indeed, I am 
not aware of any express enactment even at this day 
requiring the sheriff to sell goods or lands at auction, 
although it may, perhaps, be inferred from the 
phraseology of the acts on the subject of sales made 
by the sheriff. 

The usage and practice for about thirty-five years 
has been for the sheriff to sell both goods and lands 
at auction, because the laws of the late province of 
Quebec required it to be done, and the actual repeal 
of those laws in this province never changed the 
mode of effecting sales under writs of execution. 
Little importance, however, attaches to the manner 
of making a sale by the sheriff, because it becomes 
necessary to examine how he must proceed to effect 
a valid title to the vendee. The statute 5th G-eo. 
II., c. 7, in general terms, makes lands in the colo- 
nies liable to be sold for the satisfaction and payment 
of debts under the same species of process by which 
goods and chattels are sold, and, in my opinion, the 
legislature did not intend, by this statute, to define 
the mode of perfecting a conveyance to the purchaser 
from the sheriff, but leaves that part of his duty to 
be regulated by the laws of the province where the 
lands sold are situate. 

To render lands liable to the payment of debts, 
and also subject to be sold under the same kind of 
process and proceeding, and in the like manner as 
goods and chattels, it appears to me were the sole 
objects of the British parliament in enacting the 4th 
section of the 6th G-eo. II. I therefore conclude that 



TRINITY TERM, 8 GEO. IV., 1827. 525 

the power and authority which the' law gives the 
sheriff to sell land, and the actual requisites also 
established by law to the completion and validity of 
the title, are entirely distinct. In my opinion the 
knocking down of any lot of land by the sheriff to 
the highest bidder at auction, is in itself an inchoate 
and imperfect proceeding, preliminary to the com- 
pletion of the title to the vendee by a subsequent act 
on the part of the sheriff. 

I consider that the sheriff, by virtue of the 5 th 
G-eo. II., the King's writ of execution and the seizure 
made under it, has a property in, and legal posses- 
sion of, the debtor's lands, so far as to enable him for 
a valuable consideration to sell and convey all the 
estate to a bona fide purchaser, for the purpose of 
satisfying the judgment obtained by the creditor; I 
further think that he has the power, and that it is 
his duty to give a valid title to his vendee, as any 
other vendor, for a valuable consideration, is bound 
by law to give. 

When the sheriff in England, under a writ oi fi. 
fa., seizes a lease for a longer duration than three 
years, and sells the term, it is necessary for him after 
the sale to execute a written conveyance to the pur* 
chaser, and the sheriff in this province must do the 
same, and by a parity of reasoning he is bound to 
give an equally valid conveyance when he sells the 
fee simple in the premises; Doe ex. Dem. Stevens V. 
Denston, is an authority to shew the manner in which 
the law requires the sheriff to convey a term in Eng- 
land, {a) The defendant has contended, that the fe* 
turn of the sheriff on a writ of ft. fa. amounts to a 
title, but it appears to me, that such a return is only 

"" (^1 B. & A. 230. 



526 TRINITY *ERM, 8 GEO. IV., 1821 

a relation or statement on record for the information 
of the court, that the sheriff has levied the whole or 
a part of the debt and costs, or that he has not been 
able to do so, but this proceeding, in no one particu- 
lar, bears any analogy to the common assurances by 
. which lands are conveyed. I am of opinion that a 
deed from the sheriff to the vendee under an execu- 
tion, is an eligible mode of completing a transfer of 
the estate. It may be registered in the county where 
the land lies; and the good of the public, and the po- 
licy of the laws require such an ultimate authentica- 
tion of the title in every instance where it is practi- 
cable. The defendant has further contended in 
support of a different mode of conveyance, and to 
shew a deed from the sheriff unnecessary, that the 
estate in the lands sold by him under 2^fi.fa. passes 
to the vendee by act and operation of law only. 

The most frequent case in which I am aware of 
any estate in lands passing by the mere act and 
operation of law only, without the assistance of any 
species of actual assignment between the parties in- 
terested, is, that of an implied surrender, which 
usually is where another estate, entirely incompati- 
ble with the existing estate accepted, or where a par- 
ticular estate is transferred to the person having the 
immediate reversion or remainder at the time the 
surrender takes place, as in the case of Thomas v. 
Cook, (a) in which it was held by the court, that the 
peculiar circumstances of the case constituted an im- 
plied surrender to the landlord of the tenant's in- 
terest, by act and operation of law, and consequently 
was not -vV^ithin the third section of the Statute of 
Frauds. The doctrine of implied surrender, at any 

(a) 2 B. & A. 119. 



TRINITY TERM, 8 GEO. IV., 1827. 52T 

rate, bears no kind of analogy to the laws governing 
the sales of real estates in fee simple for valuable 
considerations, and, therefore, T conclude that wher- 
ever such sales are made by the sheriff, the estates 
are not conveyed to the vendee by the mere act and 
operation of law only, but by that act and operation 
joined to other acts on the part of the sheriff. 

Another important question, in the course of the 
argument in the principal case, was incidentally 
made; whether it was necessary to the validity of 
the purchaser's title, to prove an advertisement of 
the lands by the sheriff previous to its sale at auc- 
tion ? It appears to me that such proof by the vendee 
is not at all requisite, because the statute requiring 
the sheriff to advertise the lands before he sells 
them is clearly directory, and a failure in this part 
of the sheriff's duty cannot affect an innocent pur- 
chaser by any existing legal principle. If the de- 
fendant has been injured by the sheriff's neglect in 
advertising the lands for sale, he has his action 
against the sheriff, exactly a? he would have for not 
advertising goods and chattels before he sells them. 

As to the second objection, whether the 5,000 feet 
of land in dispute was offered to sale, and in fact 
sold by the sheriff? This was a question peculiarly 
within the province of the jury to decide under the 
direction of the court, upon a full consideration of all 
the circumstances of the case. 

Evidence on both sides was actually adduced to 
the jury, and the result of their deliberations was, 
that the sheriff offered to sale, and actually did sell 
the premises in question to the firm of G-illespie, 
Moffatt & Co., for the price of £690. 



528 TRINITY TERM, 8 GEO. IV., 1827. 

It appears to me that this finding of the jury is 
conclusive, especially as no new evidence, relative 
to the fact, has been offered or mentioned by the 
counsel for the defendant. 

The third and last objection is, if the last men- 
tioned land were sold, whether the estate in the same 
was vested in the plaintiff and his co-partners in trade ? 

I have already stated, that my opinion is, that the 
knocking down of any parcel of land to the highest 
bidder, at auction, by the sheriff, does not of itself 
transfer the estate to such bidder, in fee simple, with- 
out the aid of some subsequent act on the part of the 
sheriff. After the individuals composing the firm of 
G-illespie, Moffatt & Co., had paid to the sheriff the 
purchase money for the premises bought by them, 
they requested the sheriff, by their agent, as I un- 
derstand from the counsel, to give a conveyance of 
the estate purchased to the lessor of the plaintiff, one 
of the partners in trade, for the use of the whole firm. 

This, it appears, the partners wished to be done 
for their own convenience in the course of their mer- 
cantile business, and for no sinister or improper pur- 
poses whatever. 

I really can discover no good reason why partners 
in trade should not be at liberty to make such an ar- 
rangement for their own convenience, and it appears 
to me not to contravene any principle of law or justice. 

Upon consideration, therefore, of the whole case, I 
think the postea should be delivered to the lessor of 
the plaintiff. 

Postea to the plaintiff. 



A DIGEST 



ALL THE REPORTED OASES 



IN 

THE COUET OF KING'S BENCH. 

FEOM TRINITY TERM, 4 GEO. IV., TO TRINITY TERM, 8 GEO. IV. 



ABATEMENT. 

Pleading in-l — See Practice, 24. 

— • — 

ACCIDENT. 

By fire. '\ — New nisi, prius record 
made up, the original having been 
destroyed by fire. White v. Hut- 
chinson, 305. 



ACCORD. 

With satisfaction.] — Accord, with 
satisfaction, held a good plea to 
breach of covenant, and leave to 
withdraw the demurrer refused. 
Bayard et al. v. Partridge, 406. 



ACCOUNT STATED. 

In an action for goods sold, and 
upon an account stated, where the 
plaintifi's demand had been of sev- 
eral yeays' standing, and the jury 
gave a verdict for £18 ; the court, 
upon a motion for a new trial, con- 
sidered that evidence of an acknow- 
ledgment by letter of an account 
being due, and of an account hav- 
ing been read over to the defendant, 
67 



to which he made no objection, 
coupled with evidence that an item 
of £2, which was contained in the 
bill of particulars produced in court, 
was the same with that contained 
in the account so read over to the 
defendant, and with the witnesses' 
belief that the accounts were the 
same, was sufficient to support the 
verdict, though one principal ground 
of the witnesses' belief of the ac- 
counts being correspondent arose 
from his knowledge of the plaintiff's 
character. Large v. Perkins, 62. 



• ACTION. 

Form of.] — Case, and not tres-- 
pass, is the proper remedy against 
a sheriff" for selling goods under &fi. 
fa. before the eight days are ex- 
pired. Moore V. Malcolm, 273. 

On the case.\ — Senible, that if 
in an action upon the case for not 
manufacturing 400bushels of wheat 
into flour, the plaintiff recovers da- 
mages equal to the value of the 
wheat delivered to the defendant,, 
he cannot bring an action forgoods 
sold for a part of the wheat which 



530 



DIGEST OP CASES. 



had, in point of fact, been re-deli- 
vered to the plaintiff, and that such 
re-delivery should have been given 
in evidence in mitigation of dama- 
ges. And that an action upon the 
common counts could not, at any 
rate, be sustained in such case. 
Andrus v. Burwell, 382. 

Pleadings in.] — In an action on 
the case against a sheriff, for not 
giving notice of the sale of effects 
taken in execution, at the most 
public place in the lownship, heJd 
not necessary to set out the name 
of such place. A statement that 
defendant sold the goods without 
legal notice, and that he sold them 
for less than their real value, not 
considered as distinct and indepen- 
dent grounds of action. Malcolmv. 
Rapelje, Sheriff, Sfc, 361. 



AFFIDAVIT. 

Form and requisite ^ of. J — An affi- 
davit not considered as inefficient 
because the place of taking it was 
omitted in the jurafa. McLean v. 
Gumming, 184. 

1. To ground, application foi- secu- 
rity for costs-l — Where a plaintiff 
had left the province, the affidavit 
requiring security for costs should 
state that he has become a station- 
ary resident in a foreign jurisdic- 
tion. Micklejohn et al. v. Holmes, 
39. 

2. To ground an application for 
costs, upon malicious arrest, the 
affidavit must state that the defen- 
dant was arrested without reasona- 
ble or probable cause. Mcintosh v. 
White, 57. 

Supplementary, where allowed.] — 
See Cognovit, 2. 

1. To hold to hail.] — An affidavit 
tto hold to bail, stating that the de- 
ifendant is indebted to the plaintiff 



upon a certain bond or obligation is 
insufficient. Prior v. Nelson, 176. 

2. An affidavit to hold to bail, 
stating, '' that the defendant was 
indebted to the plaintiff, in the sum 
of £50, for the use and occupation 
of a certain tenement," held suffi- 
cient. Ferguson v. Murphy, 206. 

3. The court set aside an arrest, 
the affidavit to hold to bail not set- 
ting forth the deponent's name in 
words at length. Richardson v. 
Northrope, 331. 

4. Where a person had been ar- 
rested und^r a judge's order, the 
court did not consider it necessary 
to make use of the precise words 
pointed out by the provincial sta. 
tute, authorising arrest. Bardonv. 
Cawdell, 486. 

5. The affidavit to hold to bail 
upon a promissory note m4isi state 
it to be payable. Smith v. Sulli- 
van, 493. 

6. In an affidavit to hold to bail, 
the provincial statute is not satisfied 
by the words, " that the plaintiff had 
reason to believe that the defendant 
was about to depart this province 
without paying, &c." Clioate v. 
Stephens, 449. 



AGREEMENT. 
See Pleading, 1. 



AMENDMENT. 
See Plkading, 1. 

1. When the writ issued from the 
office of the deputy clerk of the 
Crown in an outer district, the 
venue being laid in the Home Dis- 
trict, the plaintiff had leave to 
amend upon payment of costs. 
Crawford v. Ritchie, 84. 

2. The court permitted an amend- 



DIGEST OF CASES. 



531 



ment to be made in the address, 
cause of action, and teste of a writ 
of capias. Myers v. Rathhurn, 202. 

3. Judgment roll amended by 
adding costs. Wright v. Landell, 
304. 

4. A writ of fieri facias may be 
amended so as to have relation to 
the day of the entry of the judg- 
ment. Andrus v. Page, 348. 



ARBITRATION. 

1. Where the plaintiff's attorney 
had attended a meeting of arbitra- 
tors, and theyhadmade theiraward; 
the court refused to set aside the 
same, upon the ground that the 
plaintiff had not attended to give 
his evidence agreeable to the provi- 
sion in the rule of reference, from 
the mis-carriage of a notice sent to 
him by his attorney for that pur- 
pose, and although the decision of 
the arbitrators proceeded princi- 
pally upon the evidence of the de- 
fendant. MacdougaU v. Camp, 87. 

2. The court refused to set aside 
an award on the ground that the 
arbitrators had desired it not to be 
delivered until the costs for making 
it were paid. Gee v. Attoood, 119, 

3. Where a cause has been re- 
ferred by this court to arbitration, 
notice of the time of the sitting of 
the arbitrators must be given to the, 
attorney in the cause. Allan v. 
Brown, 335. 



ARREST. 

1. An officer employed in execut- 
ing the process of the court dis- 
charged from arrest. Welhy v. 
Beard, 304. 

2. The court will not set aside an 
arrest upon the ground of irregu- 
larity in the affidavit to hold to bail 
after a prisoner has in fact escaped. 
Kee/er v. Merrill et ah 490, 



3. A plaintiff cannot arrest a de- 
fendant for the amount of purchase 
money paid for an psta,te conveyed 
to him by deed, upon the ground 
that the defendant, the vendor, was 
not lawfully seized, but must resort 
to his covenant, and proceed by 
judge's order. McLean v. Hall, i91. 

4. Where a defendant had been 
arrested by one of two plaintiffs 
for £18, and was afterwards arrested 
in the name of both for £18 10s., 
the formRr amount being included 
in the second, the court ordered the 
bail bond to be cancelled. Ransom 
and Sheldim v. Donahue, 493. 



ARTICLED CLERK. 
See Attorneys, 1. 



ASSESSMENT OF DAMAGES. 

The court refused to set aside an 
assessment of damages upon the 
ground that the verdict was too low 
from a misapprehension in the jury. 
Perkins v. Scott, 405. 



ATTACHMENT. 
See Attorneys, 3, 5, 8. Award, 6. 

1. Where a rulemsiforan attach- 
ment for non-payment of money had 
lapsed, the court refused to renew 
the rule without a fresh affidavit. 
Roy et al. v. Delay, 9. 

2. Attachment lies against com- 
missioners of courts of requests who 
try causes in which they have an 
interest, though remote. Rex v. 
Mclntyre et al., 22. 

3. Where a sheriff" had returned 
a writ in an informal manner, the 
court refused an attachment in the 
first instance. Bayman v. Struther, 
39. 

4. Where defendants had been 
brought into court upon an attach- 



"5^2 



DI&EST OF CASES. 



merit, althougrli they cleared them- 
•selves upon interrogatories of im- 
ifmted contempt, the court refused 
to allow costs against the prosecu- 
tor, although he had omitted a fact 
in his affidavit which might have 
affected their decision upon grant- 
ing the attachment, -and although 
one of the affidavits upon vyhich the 
attachment was moved for, was not 
filed early enough for them to an- 
swer it by a counter affidavit. Rez 
v. McKenzie and Mclntijre, 70. 



ATTORNEYS. 
See Practice, 4. 

1. A person may be admitted an 
attorney of this court upon his own 
affidavit of service, where the at- 
torney to whom he was articled is 
absent from the. province. Exparte 
Radenlmrst, 138. 

2. A certificate from the master, 
and an affidavit of the person en- 
titled, stating " that he had, during 
his clerkship, done eveiry thing 
required of him," was held not suf- 
ficient to entitle him to be admitted 
an attorney of this court. Exparte 
Lyons, 171. 

3. An attorney of this cdurt, 
practising in the district court, is 
liable to an attachment for not pay- 
ing over moneys received for his 

client. Carruthers v. one, 

&c., 24Si. 

4. An attorneiy in this province 
is privileged to sue arid be sued at 
York. Smith v. Ralph, one, &c., 
273. 

5. The court will not issue an 
attachment against an attorney to 
compel him to pay over money to 
his client which he had in fact for- 
warded, but.which had been lost by 
accident. 'Radcliffe v. Small, one, 
ifc, 308. 



6. Qucere, whether an attorney 
suing as an unprivileged person, 
is entitled to charge fees. Beards- 
ley V. Clench, 309. 

7. An attorney, merely as such, 
is not authorised to discharge a de- 
fendant in execution, certainly not 
without receiving the debt, and the 
sheriff so discharging a debtor upon 
his authority will be liable as for 
an escape. Brock y. McLean, Sheriff, 
235. 

8. Where an attorney of this 
court, practising in an inferiorcourt, 
has charged, and the judge has 
allowed costs clearly not sanctioned 
by law, this court will punish by 
fine or attachment. Rex v. White- 
head and Ward, 476. 

9. To subject a person to the 
penalty of the 22nd Geo. II., cap. 
46, for suing out process, &c., the 
attorney allowing his name to be 
used, must be first convicted. Rex 
V. Bidwell, 487. 



AWARD. 
S(e Costs, 1. 

1. Where there is no provision 
in an order of reference at nid 
prius, to make it a rule of court, the 
court will not set aside the award. 
Cumming v. Allen, 205- 

2. A mistake in the calculatioh 
of interest, held not to be a sufficient 
ground to set aside an award. 
PrieUman v. McDougall, 451. 

3. An award will be set aside if 
arbitrators examine one of the par- 
ties upon oat'h,they not having been 
authorised to do so by the submis- 
sion. Stocking V. Crooks, 492. 

4. Where in an action for bond 
for the performance of an awai'd, 
the court set out the intention of 
plaintiS'sdaughterandherhusband, 
the defendant, to live separate. That 



DIGEST OB' CASES. 



53-3 



it was subrtiitted to arbitrators to 
settle the amount of an allowance 
to be paid her in lieu of alimony, 
&c., npon plaintiff's entejing into 
such security as should be deemed 
proper to indemnify her husband, 
&c., and that plaintiff should, when 
the award was made known, enter 
into such security; that the condi- 
tion of the bond was to pay defen- 
dant's wife what should be awarded 
upon plaintiff's entering into such 
security; assigningforbreach (with- 
out stating that the award had fixed 
the nature or amount of the security) 
that the award had fixed the allow- 
ance at £50, payable quarterly 
thenceforward, commencing from 
the day of her departure from her 
husband, the defendant, (a day in 
point of fact antecedent to the sub- 
mission,) averring that plaintiff did 
afterwards by his deed, &c., cove- 
nant to inilemnify, &c. That, 
although plaintiff afterwards ten- 
dered said covenant, and exhibited 
the bond and award, (without any 
profert of the covenant,) and de- 
manded the sum, to wit, £62 10s., 
being one year and one quarter from 
6th September, 1822, being the day 
of the separation, &c., (a day ante- 
cedent to the submission,) due on 
the award — refusal of payment was 
held good upon a special demurrer 
objecting to it as inconclilsive, hav- 
ing a retrospect not warranted and 
wanting profert of the covenant. A 
second count omitting the statement 
of notice of the award, and a request 
to pay, also held good. A third 
count assigning for breach that 
plaintiff offered to enter into any 
security as might be deemed proper 
to indemnify, &c., yet that defen- 
dent refused to accept any thing at 
all therein, (without stating a ten- 
derof covenant,)also held sufficient, 
upon the ground that defendant's 
refusal to accept any thing at all, 
discharged the plaintiff from mak- 



ing such tender. 
man, 498. 



Bedsle'y V. Steg- 



5. The court will not, Ufpon a 
first motion, grant a rule absolute 
for an attachment for non-perforrti- 
ance of an award, although the 
party consents by his counsel. 
Stewart v. Craljoford, 409. 

6. It seems to be sufficient in an 
action upon bond, conditioned for 
the peiformance of a'n award upon 
the plea of mora est factum, and sub- 
sequent suggestion of breaches by 
the plaintiff to prove the record an 
award tallying with it. That if a 
defendant proposes to object to 
matter apparent upon the face of 
the award, or to variance between 
it and the submission, he should 
pray oyer and demur. Lassing v. 
Horned, 219. 



BAIL. 

See Practice, 25. 

1. Affidavit to hold to bail, pas- 
sim J — Where one of the bail to 
the sheriff had, in cbhsequence of 
the defendant leaving the pro- 
vince, and under an apprehension 
that he would not return to defend 
the suit, given a cognovit in his 
own name to the plaintiff, the court 
upon an affidavit of me'rits stayed 
tlie proceedings ufon the cogno- 
vit. Eobdrts V. ffasleton, 32. 

2. Where the defendant, one of 
the sheriff 's bail, had from misap- 
prehension given the plaintiff in 
the original action a cognovit, and 
had moved for and obtained an or- 
der to stay proceedings upon it 
until the action against the princi- 
pal could be tried, which order 
was conditional upon payment of 
" all costs incuried by proceedings 
agaitjst the sheriff's bail," the 
court determined that the costs of 
the proceedings iipdft th« cognovit 



534 



DIGEST OP CASES, 



should be considered as such costs. 
Hasleton v. Brundige, 84. 

3. Where a defendant presented 
himself to the sheriff in discharge 
of his bail before the return of the 
ca. sa., which had been lodged in 
the office merely to fix the bail, 
and the plaintiff nevertheless pro- 
ceeded against them, this court set 
aside the procee'dings. Ward v. 
Stocking et al., Bail of Mosier, 216. 

4. Where a defendant had neg- 
lected to put in special bail upon 
the representation of the plaintiff 
that it was unnecessary, (they be- 
ing about to compromise,) proceed- 
ings upon the bail bond were 
stayed for one month to give de- 
fendant an opportunity to put in 
such bail. Myers v. Eathburn, 
203. 

5. The ca. sa. lodged in the 
sheriff''s office to charge the bail 
is not a charging in execution. 
Dorman v. Rawson, 278. 



BAIL BOND. 
See Arrest, 4. — Baij,, 4. 



BILLS OF EXCHANGE. 

1. Where the plaintiff, endorsee 
of a promissory note payable on 
demand, had taken it two years 
after its date and was cognisant of 
an agreement entered into between 
the holder from whom he took it 
and the defendant, (the maker,) that 
the same should be set off against 
a bond of which the defendant was 
obligee, and the then holder the 
obligor, the court held that a plea 
stating these facts was good upon 
general demurrer. Brooke v. Ar- 
nold, 25. 

2. Where a note was made pay- 
able at a particular placy, although 



no averment of its being presented 
there for payment appeared upon 
the record, this court after a verdict 
for the plaintiff, and proof at the 
trial of a subsequent promise, re- 
fused a nonsuit. Mclver et al. v. 
McFarlane, 113. 



BODIES CORPORATE. 

The declaration at the suit of a 
corporation named the individuals 
composing it, and also described 
them in their corporate capacities. 
The breach was in their names as 
individuals only. The court held 
that a non pros, might be signed 
and execution issue against them 
in their private capacities. Mark- 
land et al. Commissioners, ifC., v. 
Dalton, 125. 



BREACHES. 

Suggestion o/.] — See Award, 4. 
-Proof, 2. 



CERTIORARL 

When the judgment of the court 
of requests had been set aside upon 
the application of the defendant, 
without any interference on the 
part of the plaintiff, the court le- 
fused to grant an attachment against 
him for non-payment of costs of 
removing the proceedings. Cra- 
mer V. Nelles, 36. 



COGNOVIT. 

See Practice, 12; and Bail, 
1, 2 

1. One partner cannot sign a 
cognovit in the name of a firm 
without a special authority, and a 
judgment entered upon such will 
be set aside with costs. Holme v. 
Allan and Gray, 348. 

2. A supplementary affidavit al- 



filQEST OF dASES. 



535 



lowed to be filed after judgment 
entered upon cognovit, stating that 
it had been taken as prescribed by 
the rule of court. Everingham v. 
Robineit, 380. 

3. The court will not set aside 
an execution upon the ground, that 
the action was commenced in debt, 
and the cognovit given in assump- 
sit. Brown v. Waldron, 494. 

4. The rule requiring the name 
of an attorney to be endorsed upon 
a cognovit, does not apply where 
an attorney is plaintiff. McLean 
V. Gumming, 184. 

5. The court will give leave 
to enter judgment upon cognovit 
against one defendant, the other 
being dead. Nichol v. Cartwright, 
464. 



COMMISSION TO EXAMINE. 
The motion for a commission to 
examine witnesses must be sup- 
ported by affidavit. McNair v. 
Sheldon. 451. 



COMMON COUNTS. 
Where action canftot be sustained 
upon.Ji-^See Action on the case. 



CONDITION, (PRECEDENT.) 
Where discharged.]— See Award,4. 



CONTEMPT. 
Impertinent matter in a return to 
a writ considered as a contempt in 
the sheriff". Jones v. Schofield, 441. 



COSTS. 
See Affidavit, 1 , 2. — Arbitration, 
2. — Attachment, 4. — Certio- 
rari. — Statutes, 6. — Bail, 2. 
1. Where an action is commenced 
in King's Bench, and arbitrators 
upon reference award damages un- 



der £15, the plaintiff is not de- 
prived of costs under the district 
court act. Lang v. Hall, 215. 

2. Where an action was brought 
upon a promissory note, the con- 
sideration for which had arisen in 
the district of A. ; and the plaintiff 
brought his action and recovered a 
verdict under £15, in the district 
of B., the court refused to set aside 
the judge's certificate to entitle the 
plaintiff to costs under the district 
court act. Secord v. Horner, 215. 

3. The court refused to order a 
plaintiff to pay to defendant's exe- 
cutors the costs of not going to 
trial pursuant to notice. Morris v. 
Randal, 299. 

4. In an action for a libel wherein 
the plaintiff recovered only 20s. 
damages, the judge who tried the 
cause refused to certify. Cameron 
and Wife V. McLean, 298. 

5. The court determined it not 
unreasonable for the gaoler to charge 
6d. per mile both going and return- 
ing with a prisoner by habeas cor- 
pus. Robinson v. Ball, 482. 

6. Where a defendant applied 
for security for costs by affidavit, 
dated 22nd May, and one of the 
plaintiffs deposed in an affidavit 
on the 21st June, that he was resi- 
dent at Kingston, where in fact he 
was in gaol, the court ordered se- 
curity. Bastable et al. v. Mowatt, 
492. 



COVENANT. 

A plea stating that plaintiff" en- 
joyed an estate without eviction, 
held not a sufficient answer to a 
count setting out a covenant that 
plaintiff should enjoy free from in- 
cumbrances. Sherwood v.Johns,2^2. 



COURT OF REaUESTS. 
See Attachment, 2. 



5B6 



DIGEST 01' CASES. 



DEBTOR AND CREDITOR. 

See Payment. 



DEEDS. 

See Seal. 

DEMURRER. 

See. Practice, 17. — Pleading, 1. 

The court gave leave to with- 
draw a demurrer upon payment of 
costs and pleading issuably, though 
the plaintiff had lost a trial. Tully 
V. Graham, 41. 

DEPUTY CLERKS OF THE 
CROWN. 
See Practice, 1 ; and Venue, 2. 

The court required that the ap- 
pointment of deputy clerks of the 
Crown should be sanctioned by the 
court. Cawdell ex parte. 



DISSEISIN. 

Where the heir and the widow 
of the mortgagor remained in pos- 
session after the death of the an- 
cestor, but had frequently recog- 
nised the title of the mortgagee, 
held, not to be disseisin. Doe ex 
dem. Dunlwp v. Macdougall, 464i. 



DISTRICT COURTS. 

See Costs, 1, 2. 

Where a plaintiff has special 
counts in his declaration, but aban- 
dons them and recovers upon counts 
within the competence of a district 
court, this court will order judg- 
ment to be entered on those counts 
only. Wentworth v. Hughes, 178. 



DISTRICT OFFICES. 
See Practice, 1, 4. 



EJECTMENT. 
See Limitations, (statute of.) 

1. Though a probability exists 
that a defendant in ejectment may 
have merits, the court will not ne- 
cessarily grant a new trial, the 
verdict in ejectment not being con- 
clusive upon the parties. Stans- 

Jield Doe ex dem. v. Whitney, 130. 

2. A landlord may be admitted 
to defend in ejectment without an 
affidavit stating that he is so. 
Griffin Doe ex dem. v. Lee, 235. 

3. The order, of this court which 
authorises rules to be taken out in 
the deputy's office, in the country, 
does not include rules nisi in eject- 
ment. Clarke Doe ex dem. v. Roe, 
247. 

4. Where it was sworn that 
the declaration, in ejectment, was 
served upon the tenant in posses- 
sion, the court refused to set it 
aside upon an affidavit, stating it 
to have been served upon a ser- 
vant or stranger upon the premises. 
Dunlop Doe ex dem. v. Roe, 350. 

5. Where judgment is obtained 
against the casual ejector, in con- 
sequence of the tenant in posses- 
sion having neglected to give no- 
tice to his landlord, this court will 
set the judgment and writ of pos- 
session aside, and compel the ten- 
ant to pay costs. Robertson Doe ex 
dem. V. Metcalf, 377. 

6. Service upon one of several 
tenants in possession of the same 
parcel of land is sufficient. David- 
son Doe ex dem. v. Roe, 491. 

Ejectment.] — English rules in. 

Plaintifi's attorney having served 
his declaration in ejectment, with 
notice to appear in a term not issua- 
ble, agreeable to a modern rule of 
the Court of King's Bench) in Eng: 



DIGEST OF CASES. 



537 



land, not introduced into this coun- 
try nor appearing in Tidd's Edition 
of 1817, the judgment was set aside. 
The English rule is now adopted. 
Griffin Doe ex dem. v. Roe, 203. 

Also see Burger Doe ex dem. v. 
, 269. 

Also, Rules of Court, 225. 



ESCAPE. 

See Attorney, 7. — Pleading, 3. 

The court refused to discharge a 
prisoner from custody, upon the 
ground that the gaoler having taken 
him hefore a magistrate without 
warrant, had suffered a voluntary 
escape. Robinson v. Hall, 453. 

EVIDENCE. 

See Account stated, Proof, 2. — 
Exigi fades, Practice, 3. — Slan- 
der, 1, 2. 

1. Where the witness who proved 
the notice required by the statute 
to be given to a J. P. before action 
brought, had, in his examination in 
chief, sworn that he had served a 
true copy of the notice produced in 
couit; but, upon his cross-exami- 
nation, said that it might vary a 
word or two, and the judge at nisi 
•prius had, in consequence, directed 
the jury to find a verdict for the de- 
fendant. The court granted anew 
trial. Gardner v. Burwell, 54. 

2. The court refused to set aside 
a verdict against the sherifT, in an 
action foran escape upon the ground 
that the coroner's jury, who tried 
the cause, was the same with that 
returned by the sheriff", that the 
plaintiff" had produced the original 
ca. sa. instead of a copy, or that the 
judgment against the party escap- 
ing had been obtained without con- 
sideration. Payne v. McLean, 325, 

68 



EXECUTION. 
See Practice, 9, 10. 

1. A defendant may, upon the 
affidavit required for the arrest of 
the persons of debtors, issue an exe- 
cution against the body of a plain- 
tiff who has suff"ered a judgment of 
non-pros. Johnson v. Smadis, 138. 

2. Where, with a view to give a 
defendant time, the plaintiff" had 
upon the misinformation of the de- 
puty sheriff, given a receipt for the 
debt, as the only proper mode of 
staying the execution, and which 
receipt the sheriff^ had stated in a 
return to the writ oifi.fa. the court 
ordered an alias to issue. Hinner- 
ley V. Gould, 143. 

3. The court refused to set aside 
upon motion a ca. sa. which had 
been issued upon judgment more 
than a year old, no sd. fa. having 
issued to revive it. McNally v. 
Stevens, 263. 



EXECUTORS. 

See Costs, 3. — Practice, 6. 

1. Where one of three executors 
is deceased, and the survivors bring 
an action in right of their testator, 
the declaration must state that pay- 
ment has not been made to the de- 
ceased executor. Nichall et al. Exor . 
v. Williams, 21. 

2. Where the plaintiff" had re- 
covered a verdict against executors 
for a breach of promise of marriage 
made by their testator, the court 
would not (on the ground that such 
an action could not lie against per- 
sonal representatives) arrest the 
judgment. Dairy v. Myers, (Execu- 
tffrs of,) 89. 

EXIGEl^T. 
See Practice, 3. 



538 



DIGEST OF CASES. 



FIRE. 
See Accident. 



FOREIGN COURTS. 

The judge's private seal is noevi- 
dence of the proceedings of a court 
of justice. Brown V. Hudson, 272. 



FOREIGN LAW. 

1. A foreign law authorising the 
discharge of an insolvent debtor 
must be directly proved, and the 
court will not listen to an applica- 
tion for the discharge of such per- 
son, after he has allowed judgment 
to go by default, and is in execu- 
tion. Brown v. Hudson, 346. 

2. A power of attorney and con- 
tract of sale, passed before a notary, 
in Lower Canada, (an instrument 
not under seal,) is not sufficient to 
authorise a conveyance of lands in 
this province. Sheldon Doe ex dem. 
V. Armstrong, 352. 

3. Where the person of an in- 
solvent debtor is discharged from 
arrest by a foreign authority, the 
court will not set aside an arrest 
made under the process of this 
court, for the same cause of action, 
it not being hound to model or re- 
strain the course of proceeding by 
that of other countries. Brown v. 
Hudson, 390. 

4. The court refused to dis- 
charge a defendant upon filing com- 
mon bail on the ground of his per- 
son having been discharged from 
arrest, by an insolvent law of New 
York. Dascomb v. Heacocks, 438. 



FRAUDS. 

1. Statute of.'\ — An item in an 
account stated, being the sum 
charged for the price of a lot of 
land does not make it incumbent 



on a plaintiff to prove the agree- 
ment respecting such land to have 
been made in writing. Dalton v. 
Botts, 281. 

2. Evidence of a verbal agree- 
ment to allow land to be set off 
against the amount of a note, field 
not to be admissible. McCoUum 
v. Jones, 442. 



GRANT FROM THE CROWN. 

The King's patent gives the pa- 
tentee an estate sufficient to main- 
tain trespass without evidence of 
actual entry. Clench v. Hendricks, 
403. 



GRANTEE OF THE CROWN. 
See Statutes, 1. 



HABEAS CORPUS. 
See Costs, 5. 



HUSBAND AND WIFE. 

A recognition by a party that A. 
is his wife, is sufficient to charge 
him with necessaries although they 
do not cohabit, having, in fact, 
separated, and although she may 
not stricti juris be his wife. Haw- 
ley V. Ham, 385. 



INCIPITER. 
See Practice, 5. 



INDICTMENT, (COPY OF.) 
See Practice, 13. 



INFERIOR COURTS. 
See Attorneys, 3, 8. 



INaUISITION. 
Where an inquisition had been 
found against the defendant under 



DIGEST OF CASES. 



539 



the provincial statute, 54 Geo. 3, 
the court refused to set the same 
aside on the grounds that the lands 
vested in the Crown hy that in- 
quisition had been granted by the 
Mohawk Indians to the defendant 
for a term of 999 years, in trust for 
the support of his wife (a Mohawk 
woman) and three children. Rex. 
V. Phelps, 47. 



INSOLVENT DEBTOR. 
See Foreign laws, 1, 3. 

1. The court will not grant a 
rule absolute in the first instance 
for the discharge of an insolvent 
debtor for non-payment of the 
weekly allowance, unless the affi- 
davit states that no interrogatories 
have been filed by the plaintiff. 
Williams v. Crosby, 10. 

2. An affidavit to ground the de- 
tention of aprisonerwho has applied 
for his discharge for non-paj'ment 
of his weekly allowance, must not 
only state his being possessed of 
property which he became entitled 
to subsequent to his imprisonment 
(or his obtaining his allowance,) 
but also that he has secreted or 
fraudulently parted with it. Wil- 
liams v. Crosby, 18. 

3. A prisoner insolvent applying 
for his weekly allowance, is suffi 
cienily described in the affidavit as 
a prisoner in execution in the gaol 
of the Midland District, at the suit 
of the plaintiff. Shuck v. Cranston, 
370. 

4. The court refused to consider 
the service of an order for payment 
of an insolvent debtor's weekly al- 
lowance, under the 2nd Geo. IV., 
as a service under the late statute, 
7th Geo. 4th. Shuck v. Cranston, 
437. 

5. The court will not grant an 
insolvent debtor an order for the ar- 



rears of his weekly allowance which 
had accrued pending an unsuccess- 
ful application for his discharge. 
Moran v. Malay, 408. 

INTEREST. 

The court will not order satisfac- 
tion to be entered upon judgment 
without payment of interest. Logan 
V. Secord, 173. 



INTERROGATORIES. 
See Witness, 1. 

JUDGMENT. 
The court refused to set aside a 
verdict in an action for an escape 
on the ground that the judgment 
was without consideration. Payne 
V. McLean, 325. 



JURY. 



The court refused to set aside the 
verdict against the sheriff on the 
ground that the coroner's jury, who 
tried the cause, was the same with 
that returned by the sheriff. Payne 
V. McLean, 325. 



KING'S BENCH. 

1. The proper style of this court 
is, "before his Majesty's justices," 
not before the King himself; coram 
vobis, not coram nobis. Boulton v. 
Randal, 127. 

2. The court refused to interfere 
equitably to set aside a sheriff's 
sale, and covenant for payment of 
purchase money entered into there- 
on. Wood v. Leeming, 463. 



LABOURERS. 

A person hiring himself to work 
with his own team of oxen, is not 
an object of the British statutes for 



540 



DIGEST OF CASES. 



punishing labourers deserting their 
service. Whelan v, Stevens, 439. 



LIBEL. 
See Costs, 4. 
Where a paper contains matter 
which is grossly libellous per se., 
!ind without a reference to any par- 
ticular situation or office to make it 
so, it is no objection to a verdict 
upon such libel, that the office 
mentioned in the declaration was of 
an inferior grade ; that it was not 
sufficiently proved that the plaintiff 
held such office; that there was no 
such office in fact ; that no proof 
had been adduced that the person 
mentioned in the declaration, as 
principal in the office, was so in 
fact ; nor is an objection that the 
libel does not support the inuendoes 
supported by shewing that there 
was other matter in the libel, not 
set out in the declaration, indicating 
the defendant's reasons for its pub- 
lication ; nor is such libel excused 
on pretence of its being a formal 
application to the head of a depart- 
ment to redress grievances ; and 
charging a person with violating a 
public trust are words libellous per 
se., and do not require connexion 
with any particular office. An of- 
fice may be introduced as an ex- 
planatory circumstance. Jones v. 
Stewart, 453. 



LIMITATIONS. 
Statute o/'.] — The operation of 
the Statute of Limitations is not 
suspended by the 59th Geo. III., 
cap. 3. Where twenty years' pos- 
session has followed a division of 
adjacent lots, ejectment will not lie, 
although the division may have 
been inaccurate. Stuart Doe ex 
dem. V. Radish, 494. 



MAGISTRATES. 
See Trespass, 1, 2. 



MALICIOUS ARREST. 
See Statutes, 6. — Affidavit, 2. 



MANDAMUS, 

1. Qucere, whether this court 
will award a mandamus to a trea- 
surer of a district. Rex v. Harris, 
10. 

2. This court refused to issue a 
mandamus to justices of a district 
to order parliamentary wages to be 
paid to the representative of a town 
under the provincial statute. Mc- 
Bride, Rex. v. The Magistrates of 
JYiagara, 394. 

MEMBERS OF THE HOUSE 

OF ASSEMBLY. 

See Practice, 15. 

Wages of.\ — See Mandamus, 2. 



MILLS. 

See Nuisance. 



MOTIONS. 
See Arrest, 2. 



NEW TRIAL. 

See Account stated, ejectment, 1 . 
— Practice, 11, 26. — Trover, 
seduction, 1, 2. 

1. The motion for a new trial 
must be made within the first four 
days of term succeeding the trial, 
i.e., before the expirationof the rule 
for j udgment.^ Orser v. Stickler, 42. 

2. Srnallnessofdamages no objec- 
tion to a new trial, where a verdict is 
manifestly contrary to evidence and 
the judge's opinion. Brookfieldv. 
Sigur, 200. 

3. Where justice has been done 
between the parties, the court re- 
fused to grant a new trial upon the 
ground that it had been agreed be- 
tween the contending parties that 



DIGEST OF OASES. 



541 



a third person should have been 
applied to, to settle the subject 
matter of the action, the third per- 
son being under no legal liability 
to do so. Nevils v. Wilcox, 265. 

4. Semble, that where heavy da- 
mages are given in an action of 
covenant for good title, and it ap- 
pears that the plaintiff knew the 
state of defendant's title, the court 
will grant a new trial, and will in- 
tend that in that case excessive da- 
mages have been given contrary to 
evidence. Emery v. Miller, 336. 



NON-PROS. 
See Practice, 19. 



BODIES CORPORATE. 
See Execution, 1. 



NON-SUIT. 
See Practice, 11. 

1. Where a plaintiff suffers a non- 
suit voluntarily, the court will not 
afterwards set it aside. Saunders 
V. Playter, 37. 

2. A nonsuit cannot be moved for 
in bank, unless a point has been 
reserved at nisi prius. Brookfield v. 
Sigur, 200. 

3. A nonsuit cannot be moved for 
in bank, unless it has been moved 
for at nisi prius, and the point re- 
served by the judge with the plain- 
tiff's consent. Hawley v. Ham, 385. 

4. If a defendant moves a nonsuit, 
and afterwards examines witnesses, 
the plaintiff is entitled to any benefit 
which he can obtain from their evi- 
dence in support of his case. Brock 
V. McLean, Sheriff, 398. 

Judgment as in case ofJ] — See 
Practice, 11,32. 



NOTICE. 
Miscarriage o/.] — ^ee Arbitra- 
tion, 1. 



Where four terms have elapsed 
after issue joined, a term's notice 
is necessary to be given before any 
subsequent proceeding, unless with- 
in the four terms a notice of inten- 
tion to proceed has been given. 
Henderson v. McGormich, 412. 



NUISANCE. 
A defendant who takes upon him- 
self to abate a nuisance, viz.: a 
mill-dam, may be called upon to 
pay damages for any injury done 
to the plaintiff's property, beyond 
what was necessary for the pur- 
pose of removing the public incon- 
venience. Truesdale v. McDonald, 
121. 



ONUS PROBANDI. 
See Proof. 



OYER. 
See Witness, 2. 



PARTNER, 
See Cognovit, 1. 



PAYMENT. 

Where a debtor is indebted upon 
two accounts, and makes a pay. 
ment without directing to which 
account it is to be placed, the cre- 
ditor has his election to place it to 
which he pleases, unless there is 
a specific direction for its applica- 
tion, or circumstances in the case 
tantamount to one. Hagerman v. 
Smith, 123. 



PLEADING. 

See Trespass, 3, 4, 5, and Cove- 
nant. — Variance. 
1. Where, to a declaration in 
debt upon bond, the plea stated 
that the plaintiffs had not made a 
conveyance according to agreement. 



542 



DIGEST OF CASES. 



the plea held bad upon special de- 
murrer, for want of shewing what 
the agreement was, although the 
agreement was referred to, and its 
contents might he collected from 
the condition of the hond as set 
out upon oyer. McGUvray and 
Wife V. McDonell, 139. 

2. In an action for breach of 
covenant for quiet enjoyment, free- 
dom from incumbrances, &c., it is 
sufficient for the declaration to state 
that one A. B. was seized before 
the conveyance to plaintiff, and 
that plaintiff" was obliged to pay 
him £300 to obtain possession, — 
without stating eviction by A. B. 
— a plea stating that defendant's 
executors, as aforesaid, submitted 
to arbitration, does not imply that 
they submitted in their character 
as executors. Bleeker v. Myers, 
and Myers, Executors, ^c.,285. 

3. A plea to an action for an es- 
cape, setting out " that the ca. sa. 
was not endorsed with the sum set 
out in the declaration," held bad 
upon special demurrer. Brock v. 
McLean, Sheriff, ^c, 310. 

4. Counts in assumpsit cannot 
be joined in a declaration with 
counts in debt, and such misjoinder 
is not cured by verdict. Beebe v. 
Secord et al., 409. 



POWER OF ATTORNEY. 
See Foreign laws, 2. 



PRACTICE. 

See Demurrer. — New trial, 1. — 
Venue, 2. — Witness, 1, 2. 

1. There is no occasion for the 
seal of the court to be affixed to a 
record of nidprius in an outer dis- 
trict, where the suit has been in- 
stituted and cause tried there. 
Scott V. Macgregor, 88. 



2. A writ of venditioni exponas 
against lands and tenements having 
but a few days between the teste 
and return is irregular, although 
the exigencies required by the pro- 
vincial statutes, respecting the 
teste, delivery and return of the_^. 
fa. upon which it was grounded, 
may have been complied with. 
Armour and Davis v, Jackson, 1 15. 

3. A writ oi exigi facias will be 
awarded by this court, upon the 
application of a prosecutor, without 
its being applied for by the At- 
torney-General. Rex. V. Elrod, 120. 

4. Where a bill had been filed 
against an attorney in the oifice of 
an outer district, and proceedings 
had thereupon to verdict and judg- 
ment, the court refused to set them 
aside for irregularity. Mitchell v. 
Tenhroeck, one, SfC, 126. 

5. The entry of the incipitur 
upon the roll is a suflScient entry to 
enable the defendant to move for 
judgment as in case of a nonsuit. 
Brown v. Stuart, 144. 

6. Where husband and wife, ex- 
ecutrix, are sued, service of process 
upon the husband only is sufficient 
as well as in other cases. Shuter 
and Wilkins v. Marsh et Ux., Exe- 
cutrix, 172. 

7. An application for a judge's 
certificate that a cause is a proper 
cause for a special jury must be 
made immediately after the trial, 
on the same day the cause is tried. 
Binkley v. Desjardines, 177. 

8. A capias cannot issue upon a 
verdict in trespass without a judge's 
order. McLeod v. Bdlars, 273. 

9. An alias fi. fa. may issue 
against lands and tenements re- 
turnable at such a distance of time 
as to allow the sheriff" to advertise, 
&c. Nickall v. Crawford, 277. 

10. Kfl.fa. may issue against de- 
fendant's goods, although he may 



DIGEST OP CASES. 



543 



be discharged from prison for not 
having been regularly charged in 
execution. Dorman v. Rawson, 265. 

11. Where the plaintiff's attorney 
consented to a nonsuit, under an 
apprehension that he would be al- 
lowed to move for a new trial, the 
court granted the same, although 
his consent had not been coupled 
with the leave of the judge at nisi 
prius to move. Cameron and wife 
V. McLean, 298. 

12. A witness to a cognovit hav- 
ing left the province, leave was 
given to enter up judgment. King 
V. Robins, 399. 

13. A copy of an indictment for 
high treason may be had by con- 
sent of the Attorney-General. Rex 
V. John McDonell, 299. 

14. Semble, that a rule to plead is 
necessary where bail isfiled accord- 
ing to the statute. Smith v. Sum- 
ner and Nevills, 308. 

15. The court gave leave to issue 
an original summons to warrant the 
testatum issued against a member, 
after motion to set the proceedings 
aside for irregularity. McKoane v. 
Fothergill, 350. 

16. A rule to plead where neces- 
sary, may be given at any time in 
vacation. Campbell v. Berrie, one, 
§■€., 381. 

17. Leave to withdraw demurrer 
to plea of accord with satisfaction 
to action for breach of covenant re- 
fused. Bayard v. Partridge, 406. 

18. The motion for a commission 
to examine witnesses must be sup- 
ported by affidavit. McNair v. 
Sheldon, 451. 

19. There is no necessity for a 
term's notice by a defendant sign- 
ing a non-pros, &c., although four 
terms may have elapsed without 
any proceeding had. Culver v. 
Moore, 451 . 



20. An agreement between the 
parties takes away the necessity of 
a term's notice. Gavan v. Lyon, 
452. 

21. A commissioner who takes a 
recognisance of bail cannot himself 
make the affidavit of such taking. 
Walbridge v. Lunt, 462. 

22. A notice of intended motion 
for judgment as in case of a nonsuit, 
will not supply the place of a rule 
nisi. Smith v. Kennett, 463. 

23. A demand of plea cannot be 
served before declaration filed, how- 
ever short the time may be. Read 
V. Johnson, 489. 

24. Time may be granted to plead 
partnership in abatement, but will 
not be renewed upon the ground 
that it had been omitted to be filed 
in consequence of overtures of ac- 
commodation. Grey v. Holme, 393. 

25. Where a declaration upon 
common process was endorsed, filed 
conditionally until special bail, &c., 
the court refused to set aside the 
proceedings as irregular. Taylor 
v. Rawson, 421. 

26. A venue is not changed by a 
j udge's order and service alone, and 
a defendant will not be entitled to 
judgment as in case of a nonsuit 
upon the ground that the plaintiff 
did not go to trial in pursuance of 
notice grounded upon such order. 
McNair v. Sheldon, 433. 

27. At the return of a rule nisi, 
the party who has obtained the rule 
cannot produce affidavits containing 
new matter. Gavan v. Lyon, 434. 

28. Parties, by consent, cannot 
dispense with the ordinary proceed- 
ings of the court. Flint v. Spaf- 
ford, 435. 

29. A notice of assessment will 
not be considered as a notice of 
trial. Fortune v. McCoy, 435. 



544 



DIGEST OF CASES. 



30. Where four terms have elapsed 
after issue joined, a term's notice is 
necessary to be given before any 
subsequent proceeding, unless with- 
in the four terms a notice ol inten- 
tion to proceed has been given. 
Henderson v. McCormack, 412. 

31. A rule to plead is necessary 
in bailable actions. Mead v. Bacon, 
180. 

32. Proceedings against an attor- 
ney set aside; the rule to plead 
having been given before the bill 
served. Madill v. Small, one, SfC, 
186. 

33. Costs allowed by this court 
for not proceeding to assessment of 
damages pursuant to notice. Cross 
and Fisher v. Cronther, 186. 

34. A plaintiff cannot, after tak- 
ing out his ca. re. in one district, 
file his declaration in another. 
Throope v. Cole, 214. 



PROMISSORY NOTE. 

1. Evidenceof a promissory note, 
although varying from that set out 
in the declaration, was considered 
as sufficient to support the com- 
mon counts. Hathaway v. Mal- 
colm, 182. 

2. Where the payee of a note 
endorsed the same to A. upon an 
usurious consideration, and A. after- 
wards failed in an action against 
the drawer, upon the ground of 
usury, such payee may, neverthe- 
less, recover against the drawer ; 
and it seems that the ground of the 
failure, in the former action, may 
be proved by any person present at 
the trial ; and it is not necessary to 
prove a re-endorsement by the 
usurer to the payee. Bidwell, admor. 
of Washburn, v. Stanton, 366. 

3. It seems that a note made at 
Albany may be declared upon as 



such under the statute of Anne. 
Kirk V. Tannahill, 448. 

4. Where a person in possession 
of a promissory note sued in the 
name of the payee, the court refused 
to set aside the proceedings after 
judgment upon an affidavit by the 
supposed payee, that he had never 
possessed such a note, the defen- 
dant, at the same time, not swearing 
that he had never given such a note. 
Taylor v. Rawson, 421. 



PROOF. 

See Promissory Notes, 1, 2, 

1. Where a vessel is seized as 
not being British built, under the 
provisions of 7th and 8th of William 
III., the onus probandi lies upon the 
claimant, i. e., to recover it he must 
prove that the vessel in question 
was built at a British port. Rex v, 
Nash, 197. 

2. It seems to be sufficient, in an 
action upon bond, conditioned for 
the performance of an award upon 
the plea of nan est factum, and sub- 
sequent suggestion of breaches by 
the plaintiff to prove the bond and 
submission set out upon the record, 
and an award tallying with it ; and 
if a defendant purposes to object to 
matter apparent upon the face of 
the award, or to variance between 
it and the submission he should 
pray oyer and demur. Lossing v. 
Horned, 219. 



RETURN OF WRITS. 

jS'ee Contempt. 
Recei ver-General of this province 
not liable to actions at the suit of 
individuals, for money placed in his 
hands by the executive to be dis- 
tributed among them. Butler, Exor., 
V. Dunn, Rec. Gen., 415. 



RULE OF COURT. 

See Practice, 22. — English rules. 



DIGEST OF CASES. 



545 



This court fuUv recognises the 
rule of Hilary Term, 3rd James I., 
which orders that no cause once 
argued and determined shall again 
be brought before the court. Boul- 
ton V. Randall, 127. 

Construction qf.'\ — See Insolvent 
Debtors, 1. 



RULE. 
Lapsed.] — See Attachment, 1. 

RULE TO PLEAD. 
See Practice, 14, 16. 

A rule to plead is necessary in 
bailable actions. Mead v. Beacon, 
180. 



SATISFACTION. 

See Execution, 2, and Interest. 



SCIRE FACIAS. 
See Execution, 3. 
A scire facias will not issue against 
an heir under the provisions of the 
5th Geo. II., although an execution 
may have issued against the goods 
and chattels in the hands of the ad- 
ministrator, and a return of nulla 
bona has been made. Paterson v. 
McKay, 43. 

SEAL. 
A circular flourish with the word 
(seal) inscribed is not a legal seal. 
J^agle V. Kilts, 369. 



SEDUCTION. 

1. Where in an action for seduc- 
tion of the plaintiff's daughter, evi- 
dence had been given of connivance 
on the part of the mother, and great 
negligence on the part of the father, 
and the jury found a verdict for the 
plaintiff with £200 damages, jhe 

69 



court granted a new trial. Bedstead 
V. Willie, 60. 

2. Gross neglect upon the part of 
the parents is held a ground for a 
new trial in an action of seduction. 
Hogle V. Ham, 248. 

SHERIFF. 

See Action on the case, (Plead- 
ings IN.) — Attachment, 3. — At- 
torney, 7. — Contempt. — Jury. 
— Venue, 3. 



SHERIFF OF YORK. 
The court refused to commit a 
prisoner brought by ha. co. from a 
county gaol to the custody of the 
sheriff of York. Robinson v. Hall, 
482. 



SHERIFF'S SALE. 
See King's Bench, 2, 

SLANDER. 

1. Where in an action for defa- 
mation brought by a person describ- 
ing himself in the declaration as a 
druggist, vender of medicines and 
apothecary, the witnesses proved 
that several persons practisingphy- 
sic had purchased medicine from 
him; this evidence upon a motion 
for a nonsuit was considered sufE- 
cient to support the verdict. Terry 
V. Starkweather, 57. 

2. In an action of slander a de- 
fendant may give ''facts and cir- 
cumstances" in evidence, in miti- 
gation of damages. Johnson v. 
Eastman, 243. 



SMUGGLING. 
Qucere, whether a foreigner for- 
warding prohibited goods to a place 
in the United States, so situated aS; 
to furnish a strong presumption, 
that they would be smuggled) can 



546 



DIGKST OP CASES. 



maintain an action for the price of 
of such goods. Sawyer X . Manahan, 
315. 

See likewise Sewell v. Richmond, 
Executors of, 433. 

I 2. Where in an action for goods 
sold the defence to which was that 
the goods were smu-ggled, it was 
doubtful (the verdict being general) 
whether the jury understood that 
the plaintiff knew that the goods 
were contraband, the court granted 
a new trial. Seioell v. Richmond, 
423. 



SPECIAL JURY. 
See Practice, 7. 



STYLE OF THIS COURT. 
See King's Bench, 1. 

STATUTES. 
27th Henry VHI., cap. 9. 

1. Semble, that a grantee of the 
Crown never having taken posses- 
sion, is subject to the provisions of 
the Statute of Henry the VIIL 
Purdy qui tarn v, Ryder, 236. 

43rd Elizabeth. 

2. It is not compulsory upon a 
judge at nisi prius to grant a certi- 
ficate under the 43rd of Elizabeth. 
Macguire v. Donaldson, 247. 

5th Geo. II. 

3. Semlile, that a fi. fa. cannot 
issue against lands and tenements 
6f an intestate deceased as being 
assets in the hands of an adminis- 
trator. Ruggles, Goodfame ex dem, 
V. Carfrae, 211. 

See also Scire Facias. 

4. The court refused to order a 
sherifl to refund money received by 
him as the price of land sold at 
sheriff's sale, the purchaser having 
been ejected upon the ground that 



lands could not be sold under a/, 
fa. as assets in the hands of an ad- 
ministrator. In re Carfrae, 472. 

5. As to 20 Geo. II., cap. 19 ; 
31st Geo. II., cap. 11 ; 6th Geo. 
III., cap. 25. 

/Sfee LABOURERS. 

49th Geo, III., cap. 4. 

6. Where a plaintiff had arrested 
a defjendant for a considerable sum 
of money, and evidence had been 
given in court of a larger sum being 
due to the plaintiff, and the cause 
was then referred, with other mat- 
ters, to arbitration, and the arbitra- 
tors awarded the possession of a 
mill to the plaintiff", and £6 or £7 
only in money, the court refused to 
give costs to the defendant, under 
the provincial statute for prevent- 
ing vexatious arrests. McCfregor 
V. Scott, 56. 

7. Semble, the words of the sta- 
tute, " being arrested and held to 
special bail," are satisfied by a de- 
fendant being arrested and impri- 
soned, lb., 56. 

Geo. III. cap. — , Registry Act. 

8. Semble, that a will is suffi- 
cient to give an estate, although not 
registered, provided no previous 
transfer of the property has been 
registered. Link, Doe ex dem. v. 
Ausman, 227. 

9. As to 2nd Geo. IV., and 7th 
Geo. IV. 

See Insolvent debtors, ^asMwi. 



STATUTE OF FRAUDS. 
See Frauds, Statute or. 

STATUTES. 
1, Construction of] — Where by 
the operation of provincial enact- 
ments a plaintiff is unable to give 
a proper date to the notice at the 
foot of a ca. re,, a general notice to 



DIGEST OP CASES. 



547 



appear on the first day of the term 
was held sufficient. Brown v. Smith, 
187. 

2. Whereby a clause of a prior 
statute, the two directors having the 
smallest number of votes of the five 
chosen in a former election, are de- 
clared to be ineligible at any subse- 
quent election, and by a subsequent 
statute the number of directors was 
fixed at sevenji and that statute 
named the persons who were to con- 
stitute the board until the next 
election. The court held that two 
of the board having vacated their 
seats by non-residence, rendered it 
unnecessary for two of the remain- 
ing five to vacate their seats, as 
having the smallest number of votes 
at such subsequent election. Rex 
V. Wdland Canal Company, 300. 

Public or private.] — The statute 
vesting the property of a particular 
bank in the hands of commissioners, 
with power to hear and determine 
claims made upon the bank by cre- 
ditors, though stated in the pream- 
ble to be made " on behalf of a great 
portion of the inhabitants of the pro- 
vince," was not considered by this 
court as a public statute. Markland 
etal., Commissioners, Y. Bartlet, 146. 



TRESPASS. 
See Action, form of. 

1. Where magistrates commit a 
party upon a general charge of 
felony given upon oath, they will 
not be liable to an action of tres- 
pass, although the facts sworn to in 
order to substantiate that charge 
may not in point of law support it. 
Gardner v. Burwell et ah, Justices, 
^c, 189. 

2. Omitting to state the convic- 
tion of a defendant in his warrant of 
commitment, will not subject a jus- 
tice of the peace to an action for 
false imprisonment, provided the 



actual conviction is proved upon his 
defence. Whelan v. Stevens, 245. 

3. It is necessary in a declaration 
in trespass for mesne profits to state 
that the land was the land of the 
plaintiff"; such omission is not cured 
by stating his expulsion. Grant et 
al. V. Fanning, 342. 

4. Where it is intended in tres- 
pass to justify that the locus in quo 
was a highway, the averment must 
be direct, not left to inference ; and 
a justification in a second plea for 
entering such of the closes as are 
not included in the limits of the 
highway alluded to in the first, will 
also be insufficient; and a plea pro- 
posing to justify the cutting down 
trees on the adjacent land to repair 
the highway, must mention the 
number and description of the trees 
cut down. Orser v. Mc Michael et 
al, 356. 

5. In trespass quare clausum /re- 
git, and for destroying goods, the 
township laid is descriptive and 
must be proved as laid ; and if the 
trespass is proved to be in another 
township, the variance will not be 
cured, because the township laid has 
the same name with the county in 
which the true township is situate. 
Matticev. Farr et. al., 218. 

6. A conviction bad upon the 
face of it, although not quashed, 
held not to be a sufficient defence to 
an action of trespass. Briggs v. 
Spilsbm-y, 440. 



TROVER. 

It seems that where a party pur- 
chases the goods of another at pub- 
lic sale, a notice given by the owner 
at such sale, dispenses with the ne- 
cessity of a demand and refusal to 
maintain trover, and anew trial will 
not be granted upon the ground of 
fresh evidence, it not appearing that 
it could not have been produced at 



548 



DIGEST OF CASES. 



the former trial. Fraud cannot be 
presumed contrary to a verdict. 
Haren v. Lyon, 370. 

USURY. 
See Promissory Note, 2. 



VARIANCE. 

Where the plaintiff declared as 
upon a penal bill, and gave in evi- 
dence a bond with a condition ; held 
not a sufficient variance to set aside 
a verdict. It should at least have 
been taken advantage of by special 
demurrer upon oyer. De Riviere et 
al. V. Grant, 473. 



VENUE. 

See Trespass, 5. 

1. The court will not change the 
venue in an action upon bond, con- 
ditioned for the performance of an 
award without special grounds. 
Lossing V. Horned, 83. 

2. The venue cannot be laid in 
the district of A., an outer district, 
or in the Home District, when the 
writ has been issued in the district 
of B., also an outer district. Craw- 
ford V. Ritchie, 84. 

3. The court will not change the 
venue where a sheriff'is defendant, 
on the ground that he cannot attend 
at the trial. Brock v. McLean, 
Sheriff, 235. 

4. A venue is not changed by a 
judge's order and service alone, see 
Practice, 27, and McNair v. Shel- 
don, 433. 

— • — 

VERDICT. 

Grounds of, how proved.} — See 
Promissory Note, 2. 



settled th? action between them- 
selves, without paying the attorney's 
costs, the court refused to make the 
attorney produce his warrant in an 
action instituted against the bail to 
recover costs. Shanklandv. Scan- 
tlebury et al. , bail of Baxter, 231 . 



WELLAND CANAL COMPANY 
See Statutes, construction of, 2. 



WITNESS. 

See Commission to examine. — 
Practice, 18. 

1. The court will not, under the 
provision of the provincial statute 
for issuing commissions toe.xamine 
witnesses about to leave the pro- 
vince, order such commission before 
declaration filed. Saunders v. Play- 
ier, 37. 

2. A person who assigns his pro- 
perty to trustees for the benefit of 
his creditors, considered as a com- 
petent witness to a bond given to 
those trustees by one of his debtors ; 
and an (l. s.) need not be inserted 
to a deed set out upon oyer. Moff'att 
et al. V. Leucks, 305. 

3. Semble, that a returning offi- 
cer whose conduct has been im- 
peached, is not entitled to his ex- 
penses as a witness before a com- 
mittee of the House of' Commons, 
al though he was summoned to attend 
by the speaker's warrant, in the 
same manner as other witnesses. 
Blacklock v. McMartin, 320. 



WARRANT OF ATTORNEY. 

A plaintiff" and defendant having 



WATER-COURSE. 

An injury to a water-course con- 
sidered as an injury to a permanent 
right, and in such case the court 
will grant the plaintiff" a new tria', 
although the probable amount to ber 
recovered by a verdict may not be 
large, ^pplegarth v. Rhymal, 437. 



KOWSEIL Jk ELLIS, PRINTERS, TORONTO.